Fifty years ago, Lord Devlin described the jury as ‘the lamp that shows that freedom lives’. The government has now proposed that, each year, 15 to 20 serious and complex fraud cases are tried by a judge sitting without a jury. Is freedom’s life in danger?
The proposal needs to be put in context. Juries try only 1% of all prosecuted crime. Of that 1%, 15 to 20 cases per annum are statistically insignificant. So on any view, this is not a matter that threatens freedom’s heart.
But how would such trials work? Fortunately there is plenty of experience from the Diplock, non-jury, courts in Northern Ireland. Their record is a remarkable one: with a far heavier load of terrorist cases than the English courts, there have been no miscarriages of justice of the kind that have shaken public confidence in the criminal justice system in England.
A major gain for defendants would be a reasoned judgement – an explanation of the judge’s verdict of guilty or not guilty. Contrast this with a jury verdict without reasons. Where a judge found a defendant guilty, his reasoned judgement could be considered by the Court of Appeal.
I am sure innocent defendants would have nothing to fear from non-jury courts. There would be a number of public gains. Trials should be shorter and less expensive. And judges sitting alone would be able to cope with more defendants in the same trial. In the face of so much good news, should we feel any unease?
Two matters concern me. First, fraud is about dishonesty; and the best judge of what is honest or dishonest is a jury of ordinary people.
Secondly, it is important that fraud is viewed as a serious criminal offence. There is a danger that if we treat fraud differently, non-jury convictions will be seen as less serious than convictions by a jury.
If this were to lead to a fall in public support for prison sentences for fraud, the considerable efforts being made to counter fraud could be damaged.
- Christopher Dickson, the executive counsel of the Joint Disciplinary Scheme.
Setting a dangerous precedentBy Simon Hughes
Arguments for and against abolishing juries in complex fraud trials have been circulating since 1986, when the report of the Roskill committee recommended that cases should be heard by a specialist tribunal.
At the time, both the government and the opposition felt the principle of trial by one’s peers was unassailable. Since Labour came to power they have tried repeatedly to undermine that principle.
The Liberal Democrats firmly believe in the importance of lay involvement in criminal justice. When ordinary men and women play a part in the courtroom they act as a check on the potential excesses of the judiciary, ensuring that proceedings are open and intelligible.
But fraud trials are atypical in many respects. The charges often relate to highly technical transactions, taking place over long periods.
Complexity also adds to the duration of the trial. Often jurors are asked to give up a year of their lives. Not surprisingly, many are excused on ‘personal hardship’ grounds. In the Maxwell case in 1995, 700 potential jurors were summoned, of whom 550 were excused. Not only is this expensive, but it means that those who can complete their service tend to be unemployed or retired people.
We take these objections to the current system seriously, but believe the government’s proposed solution goes too far. Instead of replacing the jury with a judge sitting alone, the current system could be made more flexible and responsive.
We would like to see better use of preparatory hearings, simplified trail procedures and a greater use of specialists to brief the court on confusing and complex issues. We would also consider the use of smaller juries selected for their expertise and availability, where a good case can be made. A jury of five retired lawyers or business people would be one possibility.
The government’s approach is dangerous not least because it sets a precedent.
There are other offences which make for unusually complex or technical trials – sophisticated organised crime is the obvious example. Any widening of the net to include other offences could ultimately lead to the discrediting of jury trial itself.
- Simon Hughes is the Liberal Democrat shadow home secretary.
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