Trying to remove Jury in long and complex Fraud Trials
In recent years in the UK there has been intense debate as to the future of the jury in criminal trials. The British government has been charged with attempting to remove the right to jury trial by its various attempts to decrease the defendant’s right to determine the mode of trial. The Criminal Justice Bill No 1 1999 have removed the need for the accused to consent to be tried summarily when charged with an “either way” offence. The bill was not enacted. The government tried again with the Criminal Justice Bill No 2 2000. But again this was not enacted.
In addition, the Act made provision for applications by the prosecution for certain fraud cases to be conducted without a jury (s.43) and also some cases where there is danger of jury tampering (s.44). Under s.43, in cases of serious or complex fraud, the prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury. If the judge is satisfied that the complexity or length of the trial (or both) are likely to make the trial too burdensome to the members of a jury, he or she may decide that, in the interests of justice, the trial should be conducted without a jury. In deciding this, the judge should take into account any steps that could reduce the complexity or length of the trial. If he or she does so decide, then the Lord Chief Justice or such judge nominated by him must approve the decision. In the case of jury tampering, there would have to be a substantial likelihood of tampering taking place to make it necessary in the interests of justice for the trial to be conducted without a jury.
Considerable reservations exist as to the ability of juries to deal with prosecutions involving complicated allegations of fraud. “Special juries” made up of persons experienced in dealing with commercial or financial matters were abolished by s18 Juries Act 1949. In more recent times, the emphasis has been on providing for pre-trial hearings before a judge to identify the contentious issues in complicated cases, in equipping courts with new technology to make the visual display of documents on video screens a possibility, and permitting the use of glossaries and the reception of complex or technical evidence in a simplified form.
How to overcome the shortcoming
The Frauds Trial Committee in 1986 recommended that juries be replaced in serious fraud cases by a fraud trial tribunal comprising a judge sitting with 2 lay assessors. The Committee concluded that long fraud trials are so complex that it is unreasonable to expect lay jurors to cope with such evidence. Lord Auld concurred with those views and CJA 2003 includes provision allowing for trial by judge alone in complex fraud trials.
Once CJA 2003 comes into force, trial by judge alone will be allowed in 3 situations:
- 1. where the defendants requests trial by judge alone, subject to the consent of the court;
- 2. where the case involves complex or lengthy financial or commercial arrangements;
- 3. where there is a serious risk of jury tampering.
These planned restrictions of trial by jury have met with some opposition. The Fawcett Society is concerned about the possibility of a single judge handling rape cases without a jury on the ground that most judges are male and white and not, therefore, representative of society. The JUSTICE organization claims that abolition of trial by jury in serious fraud cases will lead to a two-tier system, and that will have the effect of undermining public confidence.
Despite the provisions of CJA 2003 we are unlikely, in reality, to see trials by judge alone in cases where there is a potential for jury tampering. The Government has agreed not to implement this part of the legislation for the time being, pending consultation on a range of alternative proposals for specialist juries and panels of judges. This measure will not now be implemented without further debate and a vote in both Houses of Parliament.
1986, the Roskill Committee on Fraud Trials critically examined the operation of the jury in complex criminal fraud cases. Its report recommended the abolition of trial by jury in such cases. The Roskill Committee did not go as far as to recommend that all fraud cases should be taken away from juries, only the most complex, of which it was estimated that there were about two dozen or so every year. It was suggested that these cases would be better decided by a judge assisted by 2 lay persons drawn from a panel with specialist expertise. The government declined to implement the recommendations of the Roskill Committee, and instead introduced procedures designed to make it easier to follow the proceedings in complex fraud cases.
The Royal Commission on the Criminal Justice System of 1993 (the Runciman Commission) recognized the particular difficulties faced by jurors in fraud trials but, somewhat surprisingly in the light of its recommendations in relation to offences triable either way, it did not suggest the removal of the jury from such cases. It merely recommended that s10 (3) of the CJA 1988 should be amended to permit judges to put the issues before the jury at the outset of the trial.
In his extensive Review of the Criminal Courts 2001, Sir Robin Auld LJ recommended that in serious and complex frauds, the nominated trial judge should have the power to direct trial by himself and 2 lay members drawn from a panel established by the Lord Chancellor for the purpose or, if the defendant requested, by himself alone. In the White Paper preceding the CJA 2003, it was claimed that each year 15 to 20 complex fraud trials emerged that would be better dealt with by a judge sitting alone: Part 7 of the CJA 2003 provides for exactly that possibility. Section 43 allows the prosecution to apply for a serious or complex fraud trial on indictment in the Crown Court to proceed in the absence of a jury. Before granting the application, the court has to be satisfied that the length or complexity of the trial is likely to make it so burdensome upon the jury that, in the interests of justice, serious consideration should be given to conducting the trial without a jury.
