Juries on trial

If 100 people were asked what the primary difference is between a criminal and a civil trial in England and Wales, a significant percentage would probably say the presence of a jury. In criminal cases (excluding cases in the magistrates courts), the defendants guilt is decided by a jury of 12 of their peers; in civil cases, the decision as to who is right and who is wrong is determined by a judge.

However, is the jury really the right body to determine the outcome of all criminal cases? In particular, is it equipped to reach a verdict in highly complex fraud trials which may last for as long as a year?

A bill which is currently being debated in Parliament is set to abolish juries in fraud trials in certain defined circumstances is this a pragmatic development or the thin end of a rather worrying wedge?

The proposal

The Fraud (Trials Without A Jury) Bill passed its third reading in the House of Commons in January. However, it is encountering considerable resistance from the House of Lords, so much so that the last Attorney General, Lord Goldsmith, had threatened to use the Parliament Act to force the bill into law in the next parliamentary session.

The proposed legislation would enable prosecution lawyers to apply to a High Court judge for approval for a trial to take place without a jury. If that approval, and the approval of the Lord Chief Justice, is obtained, the trial will be heard and decided, by the judge alone.

The case for the defence

Critics of the bill say the right to trial by jury is the bedrock of the English criminal justice system and that it dates back to the Magna Carta (1215). People trust juries, something which cannot be said of other parts of the criminal justice system. It would also send the wrong signal to the public, namely that, in the typical high-value fraud claim, a white collar criminal would not be answerable to their peers.

The Law Society has described the bill as an overzealous swipe at the criminal justice system. It has been argued that juries should not be dispensed with simply as a way of controlling costs in complex cases and the suggestion that juries are incapable of ensuring justice in fraud trials has been dismissed as a patronising and dangerous assumption. There is also mounting concern among defence solicitors as to how widely trials without juries may eventually be extended.

It is argued that a group of 12 individuals reflect the diversity of society. By contrast, the vast majority of High Court judges are white, middle or upper class males from a prosecution background. There is a significant danger that judges may become battle hardened, and dismiss defence evidence as the same old story they have heard numerous times before.

The case for the prosecution

Justifying the bill, ministers cite several high-profile fraud trials that have collapsed, such as the Jubilee Line case, which lasted 21 months and collapsed in March 2005, costing the British taxpayer more than 60m. Ministers argue that fraud trials could be quicker, more successful and far more cost effective if the jury were replaced by a High Court judge.

Ministers estimate that between 15 and 20 fraud cases a year would be affected by the Fraud Bill. Lord Goldsmith has said that there currently exists a double standard whereby convictions are gained in simple, petty frauds but more complex cases either have to be abandoned at court or never even reach trial. Society cannot tolerate a situation where it is easy to prosecute blue collar crime and difficult to prosecute white collar crime. It is essential that all individuals are brought to justice and held to account for their actions.

A further issue which must be taken into account is the position of the juror. Cases which last for upwards of a year will clearly play havoc with a jurors personal life not least because it will prevent that individual from going to work.

The decision

There are cogent arguments on both sides. It is correct that trial by jury is a fundamental pillar of the English criminal justice system. However, on balance, it is submitted that in certain fraud cases a jury is just not equipped to be the decision-making body. The Fraud Bill will impact on only a small number of cases cases which may otherwise collapse at huge cost to the public, a situation that just cannot be allowed to subsist. As such the Fraud Bill is, it is submitted, the lesser of two evils.

Tom Canning is an associate, and Simon Levene a trainee, in DLA Pipers London litigation and arbitration group