The Repeal of section 43 of the Criminal Justice Act 2003
The defendants right to a jury and the constitutional argument
The Fraud Cases Complexity or Burden ?
The Juries reaction to previous records
A previous conviction with no intention
The acceptance of the law
The democracy argument
The decline of the jury in criminal cases
The Civil Jury
The problem of excessive damages
The defamation bill
The right of Appeal
Abbildung in dieser Leseprobe nicht enthalten
There are well-founded arguments in favour of a jury trial and the idea that the jury is to preserve democracy would more than likely remain favourable with many. However a jury trial is not without its flaws and it is now apparent that a clear argument can be made to the contrary, that a jury is somewhat questionable. Given the difficulties, the number of concerns and uncertainties that now seem inherent within the jury, there are emerging doubts. This combined with the very benefits that would be derived from abandoning the jury is too important to be ignored.
Chapter 1 is intended to open the discussion and introduce the government’s main reason for the repeal of section 43 of the Criminal Justice Act, with the ideology that a jury must be preserved. This chapter will consider the executive view and subsequent support this has before going on to challenge this argument with idealism and authority. The challenge will then follow on the premise that we do not necessarily hold a right to be tried by a prosperous jury.
Chapter 2 will open the case against the jury and present the first of a number of issues that exist within a jury trial in support of the counter argument. It shall begin by counter attacking the present government’s argument for repealing section 43 of the CJA 2003. It shall focus on the previous administration and their attempts to legislate for the absence of a jury. The discussion attempts to understand why it was that the previous government desired to abandon juries in certain trials. In seeking to explore and understand the real roots the chapter discusses the very benefits that would be derived from a judge only trial, including those that had not necessarily been the focus of the government’s argument. It shall close with an idealist approach for the expansion of the abandonment of a jury.
Chapter 3 discusses the next set of concerns that exist in a jury trial. This involves a discussion and consideration of several viewpoints that we are alerted to from a number of psychologists. The chapter considers weather it is now too much of a risk in having a jury trial. It shall discuss with examples and authority why these concerns are problematic and at the damaging effects it is having on the state financially.
Chapter 4 discusses juror nullification with the prospect that jurors can nullify, alter and amend the law. It sets out case law and authority to illustrate the potential concerns this brings. A focus will be on the dangers and uncertainties that these perverse verdicts present. Thereafter this shall discuss the democracy argument and counter it with the ideology of deceptiveness.
Chapter 5 shall view and discuss a comparison with the civil jurisdiction. This intends to illustrate how the jury has not only declined in the civil context, but that overall we have seen a decline in the jury even within the criminal sector regardless of its defenders. It takes account of the current government attempt to want to legislate to practically render the civil jury extinct. It shall discuss the reasons why civil juries have steadily declined, which will include an examination into the financial argument. It shall consider this argument and subsequent benefit this brings, thereby linking the benefits discussed in chapter 2, in illustrating how this could benefit the criminal jurisdiction if a juryless trial were put into effect. This chapter attempts to show that the somewhat non-existent civil jury is an example of how the criminal jurisdiction can become.
Chapter 6 shall discuss the solution that jury defenders would argue in defending a jury. This is challenged on the basis that it will not necessarily solve the problem, that while this is failing to remedy the concerns a jury trial presents, it is having financial consequences on the state. It shall then go on to discuss the recommendation for reform, which will include a discussion of the reforms, the benefits and the impacts that these changes will have.
Chapter 7 concludes that a jury trial is presenting ever increasing concerns and that combining this prospect with the very benefits that could be derived from abandoning the jury, in tackling these concerns is to great to be ignored.
The right to a jury
The Repeal of section 43 of the Criminal Justice Act 2003
When a citizen is charged with an offence and the crime is serious enough to warrant a charge of indictment, such as murder, rape or fraud, the defendant would hope to receive a fair trial, that said, when appearing before the crown, he may also assume that such proceedings would have twelve lay jurors present in court, that we call the ultimate deciders of fact, who will observe and listen carefully to the evidence, which is presented before them. In fact past governments have enacted or have attempted to enact legislation and statutory provisions to dictate the contrary of this assumption. Until the passing of the Protections of Freedoms Act statute law has governed a number of situations when a trial can in fact be conducted in the absence of a jury, in other words a judge only trial.
However in an attempt to limit any possibility of the state to conduct a trial in the absence of a jury the government have passed the Protection of Freedoms Act 2012. This act repeals section 43 of the Criminal Justice Act 2003 , which handed power to a prosecutor to apply for a serious or complex fraud trial to proceed in the absence of a jury. This new development means that the state has become somewhat reduced in being able to conduct a judge only trial.
At this early outset, it is the reason why the government have sought to reduce this power of the state to commence juryless trials that begs the most attention. When the Protection of Freedoms Act was still a bill one of the main arguments advanced, in its passage through parliament in debate, was that the change would protect historic freedoms. Indeed in the bills second reading in the commons the Home Secretary Mrs May in nearing the end of her speech said, “that the bill protects one of the most historic freedoms and liberties enjoyed by the British people the right to trial by jury. The bill repeals section 43 of the Criminal Justice Act 2003, which allows the prosecution to apply for a serious or complex fraud trial to proceed in the absence of a jury. We sacrifice the cornerstone of our justice system at our peril”.1 Further she went on to say, “any government and any parliament must seek to protect not only the security of the public but the freedoms that we hold dear. The bill achieves those aims. All those who believe in liberty and the rights of the individual should support the bill”.2
On this analysis the government take the view that a jury is of the utmost importance, a historical freedom that we have a right to. One could interpret that the government are content that we must always uphold a trial by jury and that the accused must not be without this fundamental right. This is a plausible argument that is both acknowledged and respected; it is certainly true to say that defendants have been tried by a jury for centuries. However, what one does take issue with is the ideology that a trial by jury is a historic freedom in need of protection. This is open to scrutiny and cannot be justified without challenge.
Firstly in turning to the view in support of the repealed provision, Rachel Robinson and Sophie farthing of Liberty the National Council for Civil liberties and a leading civil liberties organisation, contend that the repeal of section 43 of the CJA 2003 is welcomed.3 Their view is that a jury is of the utmost importance, it encourages openness transparency, increases confidence and legitimacy.4 However as said above, this change is open to scrutiny and shall be challenged below.
Unlike the government they wanted to take this change further. Indeed they went on to urge members of parliament to go further and address other provisions in force, which they feel are eroding the right to trial by jury.5 They said accordingly in order to fully “Protect historic freedoms through the defence of trial by jury”6 as pledged in the coalition programme for government, they propose that other provisions be addressed.7 Thus not only can governmental reform be challenged jury defenders are saying that they should be reforming it further. For instance Liberty does not believe that the risk of jury tampering is sufficient to warrant a trial by judge alone and said that juror tampering should be dealt with by protecting juries as opposed to removing them.8
Liberties idea of wanting to sit them in cases of jury tampering is somewhat distasteful, it like the government, talks of protecting jurors instead of abandoning them but how would it do this and what about the increase in cost that this would have on the state if jurors were not excluded for juror tampering? Even if such protections were achievable jurors can still become intimidated and made to feel uncomfortable no matter how many protections may be put in place, so what liberty also needs to consider is will this approach actually work? There is no doubt that such a measure would have cost implications. It is perhaps correct that if there was evidence of jury tampering, replacing the jury with a judge alone will not necessarily remedy the problem of intimidation or intensity.
However, this approach would be far better than the former protection measure which, if was put in place, may fail while at the same time incur costs to the state. At least this way money would be saved thereby providing a benefit to the state. Moreover liberties idea that the application of section s44 of the Criminal Justice Act undermines the presumption of innocence9 is even more ghastly. Firstly even in the absence of a jury the accused would still be presumed innocent, as there would be no reason to presume his guilt just because there were no jurors present.
Thus one cannot fully share liberties view. Liberty did however concede that if the restriction on jury trial is to remain section 44 should be amended to allow for the affected jury to be discharged and a retrial granted with a new jury.10 Again what liberty has not considered are the potential cost implications this would have. Their lack of expression or interest in the cost consequences is alarming. Their idea of bringing in a new jury through a retrial would delay the proceedings and incur huge costs. It was not correct to suggest that s44 be amended and that the government go further than the repeal of section 43. The protection of freedoms act does not go as far at this, which means certain trials can still be considered without juries and this is right. As mentioned above it is the freedoms argument for the retention of jury trial, which one takes issue with and which shall now be challenged.
The defendants right to a jury and the constitutional argument
In offering a response to the governments historical freedom argument, it is right that we examine weather it is correct for us to say that we have a right to be tried by a jury. There is the view that a jury trial was enshrined as a constitutional right in the Magna Carta of 1215, which provided for a trial by peers. Claus 39 of the Magna Carta reads “No freeman shall be taken or/and imprisoned, or disseised, or exiled, or in any way destroyed, nor will we go upon him nor will we send upon him, except by the lawful judgement of his peers or/and by the law of the land”.11 In his commentaries the eighteenth century jurist Sir William Blackstone said, that the Magna Carta had “secured to every Englishmen that trial by his peers which was the grand bulwark of his liberties”.12 Moreover in his book titled Trial by Jury, published in 1956, Sir Patrick Devlin said, “each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. Trial by jury is more than an instrumental of justice and more than one wheel of the constitution it is the lamp that shows that freedom lives”.13 Indeed while it is clear that Blackstone and Devlin are in favour of a jury trial this cannot go without challenge.
There is the contrary argument that clause 39 has nothing to do with trial by jury and in expanding on this point it is important we refer to Penny Darbyshire, who adopts this separate view. She refers to Cornish who said, “It has always been bad history to trace the system back to Magna Carta”.14 Darbyshire also sites Holdsworth who acknowledged that the misinterpretation of clause 39 has had sweeping effects on English constitutional history and explained, ”It is also clear that the words Judicium Parium do not refer to trial by jury. A trial by a royal judge and a body of recognitors was exactly what the barons did not want. What they did want was a tribunal of the old type in which all the suitors were judges of the law and fact and a tribunal in which they would not be judged by their inferiors. None of them would have considered that a body of recognitors were their peers”.15
Indeed Darbyshire went on to say, “As these and other historians have pointed out, by Magna Carta the barons simply sought to secure a deal from king John, within which they safeguarded their right to be judged by judges of no lesser rank than themselves”.16 In history of trial by jury, Forsyth had said that it was a common but erroneous opinion that ‘Judicium Parium’ or trial by one’s peers had reference to the jury and had misled many, including Blackstone. He explained that judicium implies the decision of a judge, not a jury verdict.17 Thus we can say that clause 39 has caused confusion and has been misleading in the way this provision is interpreted. Darbyshire is correct to raise her concerns along with her view that the Magna Carta does not establish a constitutional right to trial by jury.
On this analysis the words trial by peers can be interpreted in a number of ways and it would appear that we have a clear issue of interpretation. Parliament enacted the Interpretation Act 1978 to give the courts a source of guidance on statutory interpretation; indeed it is therefore necessary to examine two things. Firstly in examining the literal rule, this gives all the words in a statute their ordinary and natural meaning, on the principle that the best way to interpret the will of parliament is to follow the literal meaning of the words they have used.18 In R v City of London Court Judge (1892) , Lord Esher stated, “If the words of an act are clear you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question of weather the legislature has committed an absurdity”.19
On the other hand the mischief rule, which was laid done in Heydon’s Case , provides that judges should consider what issue the state was attempting to remedy. The courts should interpret the statute in a way as to put a stop to the problem that parliament was addressing. For instance in Smith v Hughes (1960) the Street Offences Act 1959 made it a criminal offence for a prostitute to solicit potential customers in a street or public place. In these circumstances the prostitute was not actually in the street, but was sitting in a house on the first floor and tapping on the window to attract the attention of the men walking by.20 The judge decided that the aim of the act was to enable citizens to walk along the street without being solicited and despite that the soliciting was aimed at people in the street, even though the prostitute was not in the street herself, the legislation should be interpreted to include this activity.21
In reinforcing Darbyshire’s theory let us consider Ronald Dworkin, who said that there is a need to draw a distinction between two senses of the word “statute”.22 He said it can describe a physical entity of a certain type, a document with words printed on it, the very words congressmen or members of parliament had in front of them when they voted to enact that document.23 But it can also be used to describe the law created by enacting that document which may be a much more complex matter.24 This is an important distinction and the former appears interesting. It is also for this purpose that we now turn to Elmer’s case where the accused murdered his grandfather by poisoning him in 1882.25 He knew that his grandfather’s existing will left him the bulk of the estate and he suspected that the old man, who had recently remarried would change the will and leave him nothing.26 The fundamental question then was weather he was legally entitled to the inheritance his grandfather’s last will provided? The statute of wills said nothing explicit about weather anyone named in a will could inherit according to its terms, if he had murdered the testator. None of the judges denied that if the statute of wills properly interpreted gave the inheritance to Elmer, they must order the administrator to give it to him.27
For the most part and perhaps most fundamental to Darbyshire’s attack on the jury, judge Gray in his dissenting opinion argued for a theory of literal interpretation. In mirroring R v City of London Court Judge he proposed that the words of the statute be given their acontextual meaning, that is, the meaning we would assign them if we had no special information concerning the context of their use or the intentions of their author.28 Indeed this method of interpretation requires that no unexpressed qualifications be made to general language within the statute. Thus judge Gray insisted that the real statute constructed in the proper way contained no exceptions for murderers because it literally did not express it and he found in favour of the accused.
Now lets imagine we apply Judge Gray’s theory to the Magna Carta, it quite rightly might be asked how one may interpret this. According to Gray it would appear that taking ‘ trial by peers ’ literally means prima facie, that is on the face of it, that we do not have a right to a trial by jury because any literal rule would confirm no more than what it already says and in this case that is trial by peers.
On the other hand judge Earl in writing for the majority used a different theory of legislation, which gives the legislators intentions an important influence over the real statute. Earl said, “that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers”.29 Indeed what Earl was attempting to show was that we must think what the true intentions of the legislators were when it passed its law. It is correct that no legislator can have in mind all the consequences of any statute he votes for.
For instance it seems likely that the legislators did not have the case of murderers in mind at all. They did not intend that murderers inherit, but neither did they intend that they should not. They had no active intention either way. For Earl a statute does not have any consequences the legislators would have rejected if they had contemplated it.30 In other words the judgement dictated that although the statute of will’s did not say a murderer cannot inherit the judges would need to consider weather the legislators, had they contemplated it, would have been content with the consequences of allowing a murderer to inherit. If they took the view that it was more likely than not that they would have rejected it then the law would not have the consequence of allowing a murderer to inherit.
This was a judgement that went beyond a literal approach and it is no surprise given that there was a dispute about what the law was, what the real statute the legislators enacted really said. However even if we apply this more mischief approach to clause 39 of the Magna Carta, one may ask how can we be sure the legislators were intending that peers meant jury or weather they meant a category of persons from a certain group?
We can begin to understand that it is questionable at weather we really do have a right to a trial by jury. Having said this, even if one were to concede that it has become a constitutional convention when statute prescribed that jurors be independent, there is the other contrary concept that trial by jury is only one part of the constitution. Darbyshire contends that Lord Devlin spoke as if there was an entrenched right to a jury, as there is in the United States constitution or the Canadian bill of rights.31 She is right in making the point that the sovereignty of parliament dictates that we do not have any entrenched rights especially in relation to issues beyond EC and International laws.32 She contented that parliament practically rendered the civil jury extinct and has continually eroded the use of the jury in the criminal trial, something which cannot be ignored.
As much as it can be argued either way weather we really do have a right to a jury, it would appear that this is something which can certainly be challenged and with good reason. Even if one could say we have a constitutional right this can be challenged, as it is not entrenched. Parliament could legislate to abolish a trial by jury and this should not necessarily be seen as arbitrary, given that it would be right to infer that it is not necessarily correct to say we even had a right to a trial by jury. On this analysis it would not be completely correct to say that a jury is a fundamental historical freedom that is in need of protection.
Further still, there is also a jurisprudential issue with those who justify the use of jury trial as a right. Darbyshire notes that the term right implies a choice. Lets imagine when we think of procedural rights in the justice system we are implying a choice. For instance the accused does not have to exercise his right to silence. This choice can properly be classed as a right to jury trial. Lets say on the indictable offence of murder the accused must appear before the crown when the only choice is as to his plea. The accused’s only right is as to trial. It would be right to speak of a right to jury trial in the United States but not to speak of jury trial’s being a right in the English legal system.
Darbyshire accepts that the essence of the right must be a power of waiver and that MaCormick would take issue with this and argue that restricting my power of waiver does not negate my right.33 She responds with what was asserted by Simmonds, “it is doubtful if paternalism of this kind is best interpreted as a protection of the party’s rights”.34 According to interest theories jury trial can only be described as a right if the intended beneficiary of the courts duty to provide that right is the accused.35 If the purpose of jury trial is primarily ideological as a symbol to legitimate the criminal justice system then the defendant is the unintended beneficiary and therefore cannot be said to have any real right to be tried by a jury.36
Therefore the government, in attempting to justify the repeal of section 43 of the CJA 2003 through their historical freedom argument, is certainly open to challenge. Indeed it is suggested that we reverse this recent development in the law and legislate to abandon the jury for the reasons explained below.
The Criminal Justice Bill
The Fraud Cases Complexity or Burden ?
From our discussion above it can clearly be disputed over weather a jury trial is in fact a right that is in need of protection. It is now apparent that being tried by twelve peers is not without its flaws. There are a number of difficulties and concerns that a jury trial brings to justice and to the jurors themselves. In now presenting the case against a jury trial the argument will begin by critically discussing the previous administration and their ideology for a non-jury trial.
It was under the last administration that the idea of a non-existent jury trial came to the fore. A decade before the present governments repeal of section 43 the then criminal justice bill, now known as the Criminal Justice Act 2003, went through parliament. In debate when pushing through the bill, the then home secretary Mr Blunkett said, “I suggest in the bill that certain trials go on for so long that they bedevil people’s lives generally”.37 Further he went on to say, “Roskill in 1986 and Sir Robin Auld made suggestions on serious fraud and what it means. It is worth reflecting for a second on what happened in the Maxwell trial: there were 131 working days in the first, second and third trials, which were scheduled they never took place. That followed 60 days of pre trial work which took up the jury’s time”.38
The opposition argued that the juries had no problem with comprehension or understanding and challenged this. The opposition member Mr Letwin contended, “in circumstances where there may be inconvenience for juries, but where juries have repeatedly shown themselves to be capable of understanding fraud trials and of convicting in such trials indeed, they are more capable of convicting in fraud trials than in others”.39 This is plausible and rightly argued because there is a view that jurors are perfectly capable of understanding and are able to deal with such comprehension as before them.
For instance the written literature produced by T.M. Honess discusses the findings from a series of studies which were based on a simulation of the Maxwell trial, designed to approximate the experience of the Maxwell jurors as closely as possible.40 In considering how competent jurors are he goes on to state, “that the majority of participants in our studies at around four out of five may be regarded as sufficiently competent to serve on a major fraud trial”.41 In conclusion Honess whatever what ever merits it may or may not have it is far from clear that the abolition of a jury system for complex fraud is warranted on the grounds of cognitive unfitness”.42 He goes on to state that with some screening measures and more focused help, non-specialist jurors are sufficiently competent to understand and handle the information relevant to the verdicts.43 Indeed Mr Letwin makes a good point because there is not a sufficient body of research which confirms that jurors are not understanding the evidence and any research that has been carried out would seem to suggest the contrary, that they are in fact understanding the cases perfectly and that comprehension is not a major issue.
However in challenging Letwin for defending the jury one may interpret the then home Secretary as leaning more towards the issue of length and burden, in attempting to justify why we needed an end to jury trial in these types of cases. Indeed in the debate he went on to say, “we must take into account complexity, the length of time involved in jury service and the enormous burden placed on individuals who would not wish to serve on a jury in such circumstances”.44
The opposition view is respected but it was not so much the issue of complexity that was thought to be the concern, the previous administration seemed just as determined to tackle the welfare and well being of the jurors themselves, otherwise the burden of a long trial with or without complexity would not have been specified as a condition for considering judge only trial in what then became section 43 of the CJA 2003. Indeed in a debate on section 43 the 2002 White Paper, Justice for All said, “a small number of serious and complex fraud trials, many lasting six months or more, have served to highlight the difficulties in trying these types of case with a jury. Such cases place a huge strain on all concerned and the time commitment is a burden on jurors personal and working lives”.45
One certainly takes the point that the longer a trial lasts the more of a burden this places on jurors so the previous government were right to want to abandon jury trials in cases of fraud, that were serious and lengthy. Although Section 43 did not come into force the legislators were right to think the ideology up. Thus attempting to legislate to hand power to a Crown Prosecutor to apply for these trials to be conducted without a jury was correct.
In elaborating Professor Sally Lloyd Bostock discusses the interviews she conducted with several jurors who sat in the Jubilee line case. In her research she discovered that their jury service caused serious personal difficulties, which impacted on their careers.46 In echoing then the ideology about trial length and burdens the Jubilee line case alerts as to an alarming situation. Here a number of jurors who were employed said that their employers were unhappy about the length of the trial. Most felt that the court should have more responsibility for communicating directly with their employer rather than placing the onus on the jurors.47 Jurors described serious difficulties over their employment contracts, including attempts to dismiss them.48
Damage to juror’s employment and career prospects emerged after the trial’s collapse.49 One juror had been made redundant, another was in an employment dispute, one had missed a promotion and one had been signed off by his doctor as a result of stress due to work, other jurors reported set backs in work due to their prolonged absence.50 Young members who were employed with different companies found that when they returned their responsibilities were reduced, that they had missed promotion opportunities and the prospect and status within their organisation had been harmed.51 One, who spent a number of years working his way up in his company said, “Those four years has gone to waste. The two years have put me out of the picture… I personally feel I have wasted seven years because of these two years. It feels like I’ll be wasting another two years at work rebuilding the two years. It sets me way back”.52
Feelings about serving on a long trial were mixed from the outset; some said that they could not anticipate the difficulties that would arise.53 As the trial progressed concern over their jobs and feelings of frustration at having their lives taken over grew.54 After 13 months the jurors wrote to the judge challenging the slow progress and length of the trial, all were frustrated and bewildered at the collapse of the proceedings, which made them feel like serving as jurors feel like a waist of time.55 One commented “I felt really unhappy when it collapsed. I was shell shocked at first then I felt a bit bitter, because I thought ‘What a complete waste of taxpayers’ money, what a fiasco its been”.56 Further still some said that the jury was the one group that had come out of the trial worse off, the accused and the lawyers were happy. One said “it affected me very badly because [the defendants] all walked away, cheerfully, happily… but people like me suffered… They had big smiles… Who is going to support me? Nobody supported me”.57
Aside from the risks to careers many of the jurors suffered financially. The types of financial consequences this had cannot be ignored. For instance Bostock found that losses included missed bonuses, lost overtime, expected pay rises and missed promotion.58 The costs of child care during several months retraining were required after the collapse of the trial, there were costs of servicing loans taken out as a result of jury service and the turnover of businesses become depressed and suffering financially.59 Moreover a few felt that they should receive compensation to compensate for their financial losses or to make up for all they had sacrificed in non-money terms to the jurors.60
These concerns again show that the previous government, in their attempt attempted to legislate for the abolition of juries in lengthy and complex trials were right. As explained above this is one of the major difficulties that a jury trial presents. If we were to ask can it be right that while the accused is possibly acquitted for his wrongs a juror’s contract of employment is terminated or dented financially? Indeed we would not find it difficult to see that these cases are unfair on a jury and it gives a sense of injustice in that they can very easily be the group that comes out of this worse off. Again this is only one of the fundamental difficulties presented by a jury trial and the then previous government was right to want to dispose of the jurors for their own benefit. Thus although the present government have repealed section 43 one may argue now that this opens the way for more unfairness on the jurors themselves.
The previous administrations ideology in wanting to legislate to abandon juries in certain situations is clearly plausible and intriguing. In attempting to question and explore why the legislators really wanted to enact this rule is a theory of value. It is here that we can examine what were perhaps the real underlying roots to their ideology. In drawing attention to the Auld report, Review of the Criminal Courts in England and Wales 2001, it was Sir Robin Auld that recommended the change that lead to the previous governments attempts to legislate for the abolition of juries. For Auld there had long been concern about the problems posed for a jury in cases of serious and complex frauds, of which carried founded anxieties about possible injustice and the enormous financial and other demands that jury trial imposed on the system and all involved in it.61 In support of the argument above he took the view that any remorseless increase in the length of these trials in recent years has become a severe intrusion on jurors working and private lives.62
The majority of the 1986 Roskill Committee also recommended the replacement of juries for trials of serious and complex fraud by a fraud trials tribunal consisting of a judge and a number of qualified lay members.63 Although one of the committee members, Walter Merrick in a powerfully reasoned dissenting note, argued that there was no firm basis for removing the established right to jury trial in such cases.64 For Merrick the absence of any general research into the workings of juries, meant the way forward was to simplify and improve trial procedures.65
In response to that assertion, Merrick is right in the latter sense because as was explained above, there is a lack of empirical research to suggest that jurors cannot cope. As Honess rightly points out any research that does exist would seem to suggest that jurors have no difficulty in understanding such cases. However, in the former, when he talks about removing such a right, one tends to disagree with him because it would appear that it is not completely correct to say that we have a right to a jury. His idea about this established right is certainly challengeable. Further in attacking Merrick for defending the jury, Auld was correct to say that a high number of high profile trials drew attention to continuing problems of manageability caused by their complexity and length. In several cases that went before the court of Appeal (CA), the court commented that such problems put at risk the fairness of trial, imposed great personal burdens on all those involved and made great demands on limited and expensive resources.66
For Auld the length of the trials, sometimes of several months, was an unreasonable intrusion on juries’ personal and working lives, which went beyond the conventional requirements for such duty of two weeks service.67 It makes juries even less representative of the community, since the court excuses many who would otherwise be able and willing to make short term arrangements to do their civic duty and long trials are a great personal strain and burden on everyone else involved in the proceedings.68 Auld thought that the most compelling factors in favour of reform was the burdensome length 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.69 Indeed he contended that a number of fraud and other cases, by reason of their length, complexity and speciality, now demand much more of the traditional English jury than it is equipped to provide.70
Sir Auld’s view has enabled us to try and understand the real reason why the previous administration came up with the idea to abandon juries in certain situations. If we begin to further question why he himself came up with these recommendations this may enable us to begin to understand why we are even considering the ideology of a juryless trial in certain circumstances. But what is perhaps astonishing is the other potential gains that could be made that he himself did not seem to give as much weight to.
The unexplained benefits derived from a judge only trial
In our assessment of Auld we have already touched on Lord Roskill and the Fraud Trials Committee 1986 however it is now appropriate to draw attention to the then much later consultation that was drawn up before Auld made his recommendations. In 1998 the Home office issued a document named Juries in Serious Fraud Trials.71 This considered the arguments that were put forward for suggesting that the nature of serious fraud cases justified a departure from the practice of jury trial for serious criminal offences.
Like Auld, the Home Office referred to the Roskill Committee, which was asked, “to consider in what ways the conduct of criminal proceedings in England and Wales arising from fraud can be improved and to consider what changes in existing law and procedure would be desirable to secure the just, expeditious and economic disposal of such proceedings”.72 At that time the committee was right to issue a number of recommendations which we have touched on and they were later put into effect by the Criminal Justice Act 1987.
The Home Office illustrated a number of cases that highlighted continuing difficulties created by a jury trial in situations of fraud. Similar to that of Auld it felt that the cases placed major strains on all parties concerned, the judges, advocates, defendants but above all the jury as well as proving to be highly expensive.73 Indeed when such cases themselves did produce a conviction the outcome had resulted in that conviction going on to be quashed on appeal. For instance the Court of Appeal (CA) commented in the Blue Arrow trial, that the case had become unmanageable and that there was a significant risk of a miscarriage of justice, resulting from the volume and complexity of the issues presented before the jury.74
Moreover such concerns have stopped trials before the jury could consider a verdict. In R v Jones the judge discharged the jury from returning verdicts once the prosecutions case had been presented, on the grounds that the jury would not be able to recall the vital features of the evidence by the time they would be asked to retire.75 In light of the difficulties the home office were right to issue a consultation for change. It is right to say that cases of particular length caused difficulties for the system of jury trial, that its limitations in such cases outweigh the recognised advantages which jury trial offers in serious criminal trials.
With respect to the length and burdensome argument advanced above, it is a matter of interest that the home office took the view that the length of trials compounded the problem of any complexity and that it was unreasonable to expect jurors to concentrate, understand, assimulate and in particular remember huge quantities of detailed, complex and technical evidence over a period of time.76 On this alone we can begin to understand why Auld and the then previous administration took the view that they did.
Moreover lets not forget the consideration of the adverse impact on individual jury members. Given the prospect of such lengthy service it is not surprising that many jurors will ask to be excused from that particular trial on personal hardship grounds, to do with business or professional communities or family obligations. For instance in the 1995 Maxwell Case, the home office made it clear that 700 jurors were summond and 550 of them were excused on personal hardship grounds.77 A situation where members of the public are unable or unwilling to serve is undesirable as well as administratively unhelpful.
Again the home office was right that this issue further gave rise to the prospect of jury panels no longer being representative of the community and one can certainly argue that this alone undermines our democracy. The consultation paper commented that a former master of the rolls argued that jurors in long trials had to be specially selected for their ability to devote so much time to jury service.78 The document made the point that many observers would agree that the current length of some fraud trials is unsatisfactory and not in the interests of justice.79
Incredibly unlike Sir Auld and the previous administration, the home office laid down a number of other advantages that a judge only trial would bring. Firstly in considering better trial management, it felt that a judge would be able to make full use of the preparatory hearing procedures to narrow the issues which need to be addressed, it said that the judge would then be able to direct and control counsel in a way which judges sitting with juries are unwilling to do in case they appear unfair.80 Such trials would also mean less technical argument; the procedure where admissibility is in issue could be expected to be much less protracted where there is no jury.81 A non-jury would also reduce the burden on witnesses and those witnesses who are called to give evidence could expect their examination and cross examinations to be less protracted when there is no jury.82 This is right because the defence would be less likely to cross examine at great length on uncontroversial facts in an attempt to impress a judge who may be unimpressed by such tactics.
A judge only trial would create better comprehension, it said the judge is used to absorbing large quantities of material and better able than the average juror to remember and understand the importance of the mass of information that exists in long and complete fraud cases.83 This is also plausible because this would enable both parties to present their evidence with less repetition and lead to increased confidence that their points are being fully understood. The consultation also felt that a reasoned verdict would mean that a judge would produce a reasoned verdict, which would inform the prosecution, the accused and the public at large why the verdict in question had been reached.84 This is not the current position with a jury trial and this is highly fundamental because by giving a proper verdict this would provide proper protections and result in a decrease in appeals. These advantages would also mean that trials before a single judge might be much shorter than at present.
1 Hansard, House of Commons, Protection of Freedoms Bill, 1st March 2011, (second reading) p.25
3 Liberty, Liberty’s Committee stage briefing on the Protection of Freedoms Bill (Supplementary provisions) in the House of Lords, 2012 p.14
7 ibid p. 15
11 P. Darbyshire, ‘The Lamp that shows that Freedom Lives is it Worth the Candle?’, Criminal Law Review, 1991, p. 2
12 S. Broadbridge, ‘The Criminal Justice Bill: Juries and Mode of Trial’, House of Commons Library, 2002 p. 42
13 ibid. p. 42-43
14 P. Darbyshire, Loc. Cit.
15 ibid. p. 2-3
16 ibid. p. 3
18 C. Elliot & F. Quinn, English Legal System, (9th edn), Pearson Longman, 2008, pp. 43-44
20 ibid. p. 47
22 R. Dworkin, Law’s Empire, Hart Publishing Oxford, 1998 p. 16
25 ibid. p. 15
27 ibid. p. 16
28 ibid. p. 17
29 ibid. p. 18
30 ibid. p. 19
31 P. Darbyshire, Loc. Cit.
36 ibid. p. 3-4
37 Hansard, HC Vol. 395 cc 912-92 (2002).
40 T.M. Honess, ‘Juror Competence in Processing Complex Information: Implications from a Simulation of the Maxwell Trial’, Criminal Law Review, 1998, p. 1
41 ibid. p. 6, 7
42 ibid. p. 7
44 Hansard, HC Vol. 395 cc 912-92 (2002), Op. Cit., p. 8
45 M. Peck, ‘The Fraud (Trials without a Jury) Bill 2006-07’, House of Commons Library, 2006, p. 15
46 S. L. Bostock, ‘The Jubilee Line Jurors: does their Experience Strengthen the argument for Judge Only Trial in long and Complex Fraud Cases?’, Criminal Law Review, 2007, p. 1
47 ibid., p. 5.
49 ibid., p. 8
51 ibid, p. 8, 9
52 ibid, p. 9
61 Auld L. J, ‘ Review of the Criminal Courts of England and Wales’, Paras 1-207, (October 2001), pp. 200, 201. < http://www.criminal-courts-review.org.uk/. >
62 ibid. p. 201
63 ibid. p. 201, 202
64 ibid. p. 202
67 ibid. p. 203
69 ibid. p. 204
71 Home Office, Juries in Serious Fraud Trials: A Consultation Document, (February 1998).
72 ibid. p. 5
74 ibid. p. 5,6
75 ibid. p. 6
76 ibid. p. 7,8
77 ibid. p. 8
80 ibid. p. 30
84 ibid. p. 30, 31
- Quote paper
- LLB, PGC, GFTD, GCILEx James Michael Corbett (Author), 2012, Has the time come for the Houses of Parliament to abolish a trial by Jury, so that all Crown Court trials are heard by a Judge alone?, Munich, GRIN Verlag, https://www.grin.com/document/950359