A fraud on freedom

The Fraud (Trials without a jury) Bill seeks to enact Criminal Justice Act 2003, s. 43 (CJA 2003), which allows for trial without a jury in complex and/or lengthy fraud cases on application by the prosecution. The test that must be satisfied is that the complexity and/or length of the trial is likely to make the trial so burdensome  to members of the jury hearing it that the interests of justice require that serious consideration be given to a non-jury trial.

If the judge at first instance finds that serious consideration should be given to a non-jury trial, permission of the Lord Chief Justice, or a judge nominated by him would then be required. If permission is granted it is proposed that a High Court judge will then try the case.

The primary impact of the Bill if enacted is that it would result in a dramatic constitutional change — it would signal the erosion of the fundamental right to be tried by your peers. Despite their antiquity, the observations made by Sir William Blackstone, in his Commentaries on the Laws of England some two hundred years ago are acutely relevant now:

‘Yet let it be again remembered, that delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred  bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.’     

Such momentous change should not be taken lightly, if at all and only after proper and informed debate.

Supporters of the Bill seek to argue that such a change is required because juries are simply unable to follow the complexity of cases. Prosecuting authorities are forced to over simplify and shorten cases which results in the failure to properly reflect the criminality of the defendant(s), or in some cases a prosecution may not be brought at all. Fraud trials are too long and too onerous a burden to place on a member of the public.

Reliance is placed on the findings in the Roskill Report (1986) and the Auld Report (2001). Both suggest that consideration be given to a judge sitting with lay assessors in certain circumstances. The government has stated it has no plans to extend the limitation on the right to be tried by a jury beyond fraud cases. Any inroad into the right to be tried by your peers should be viewed with great caution. What the government says today, may not be what it says tomorrow. Arguments for the removal of jury trial may equally be said to apply to drug and tax conspiracies, multi-handed murder, large-scale historical sexual abuse and terrorism trials. Is this the thin end of the wedge?  

The argument that change is needed because juries are simply unable to follow the complexity of fraud cases flies in the face of recent investigations. An independent review of R v Rayment and Others 2005, which concerned allegations of fraud arising out of the construction of London’s Jubilee Line extension project, found that:

‘….a better monument to the endeavors of juries in this country or a better justification for the jury system would be hard to find.’

In reality, most complex fraud cases turn on the kind of relatively simple issues which underpin every criminal trial, such as whether the defendant was acting dishonestly in what he/she did, and whether they participated in the alleged fraudulent design. It is surely better to require the prosecution to rise to the challenge of presenting factually intricate and complex allegations in a way that a reasonable, competent jury can absorb and determine. This helps distill what the true issues are and ensures the best evidence available is relied upon.

Prosecuting authorities are forced to over simplify and shorten cases which results in the failure to properly reflect the criminality of the defendant.

No evidence exists to support such a contention. In a system of trial by judge alone, the prosecution would not need to focus and refine the evidence and issues in the same way as before a jury; the result may be that more defendants are tried against whom the evidence is less clear cut, this in turn may result in lengthier indictments, more detailed evidence, and longer, more expensive trials.

The burden placed on the trial judge would be enormous. High Court judges would be tied up in long complex fraud cases which would impact negatively on other areas of the Criminal Justice System. Provision already exists in the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) to permit specimen and selective charges to be tried by jury, followed by judicial determination of the remaining charges —  DVCVA 2004, s. 17 came into force on 8 January 2007.

There is no evidence to support the contention that fraud trials are too long and too onerous a burden to place on a member of the public. This argument could apply equally to all long cases many of which do not involve allegations of fraud. There are already in place new mechanisms to properly manage and control fraud cases: The Fraud Act 2006; Control and Management of Heavy Fraud and Other Complex Criminal Cases, a protocol issued by the Lord Chief Justice and the 22 March 2005; and a cross-departmental review of fraud undertaken by the Attorney-General.

All of these seek to refine issues, keep cases under control and ensure trials are shorter and more effective. Their impact should be assessed before rushing into further legislation.

Reliance by supporters of the Bill on the findings in the Roskill Report and the Auld Report is misplaced. neither, despite detailed consideration of the issue, recommended trial by judge alone. Suggestions included a judge sitting with a lay panel of assessors, with the added requirement of the consent of the defence. In reality, many of the arguments put forward boil down to a desire for greater expediency in fraud cases both financially and in time.

Yet in practice this may not be the result. The practical implications of trying fraud cases without a jury should not be underestimated. In becoming both arbiters of fact and law, judges will possess knowledge and information that a jury would not be privy to: hearsay evidence ruled inadmissible, bad character evidence not relied upon, confessional evidence, abuse hearings and severance arguments, to name but a few of the many areas which would give rise to prejudicial knowledge that at the very least gives a perception of bias and unfairness.

Public interest immunity is a real problem: such applications place before the trial judge material relevant to the issues in the case but deemed too sensitive to disclose. That material is unchallengeable as the defence does not know what material exists.

What confidence would a defendant have that in determining guilt, or innocence, the judge would genuinely disregard such material? Would a second trial judge be needed to deal with public interest immunity applications? — this would be unworkable in practice.

 If a judge during the trial process, rightly or wrongly, is perceived to favour one party over another, the view of judicial impartiality will be eroded. The change is not widely supported by the judiciary which sees the difficulties that will arise in the implementation of s.43 of the CJA 2003.

To erode the right to trial by your peers based on argument that does not stand up to scrutiny, especially when recent changes have been implemented to address trial management issues and assist in the fair and expedient prosecution of fraud trials, is simply not warranted.

It is change for changes sake. In criminal cases the advantages of a simple anonymous ‘guilty’ or ‘not guilty’ from an anonymous tribunal of ‘ordinary people’ are enormous. Jurors are independent; they represent the cross-section of society. A jury is, as Lord Devlin once said, ‘the lamp that shows that freedom lives’.

Gillian Jones is a barrister specialising in criminal law, author and writer, and a committee member of the Criminal Bar Association.