The use of juries has diminished considerably and automatic recourse to trial by jury is restricted to a small number of areas and, even in those areas, the continued use of the jury is threatened. Under s.69 of the Supreme Court Act 1981, the right to a jury is limited to only four specific areas: fraud, defamation, malicious prosecution and false imprisonment. Even in those four areas, the right is not absolute and can be denied by a judge under s.69(1), where the case involves’ any ‘prolonged examination of documents or accounts or any scientific or local investigation which can not be conveniently be made with a jury’ (Walker & Walker, 1998). In civil trials it is necessary to know the extent to which juries are used and the functions performed by them, particularly the extent to which jurors must decide issues other than liability, for example compensation. On this matter it is important to understand the dilemma concerning ‘excessive’ awards, particularly in defamation cases (John v MGN Ltd [1996] 2 All ER 35).
In Beta Construction Ltd. V Channel Four TV Co ltd [1990], the Court of Appeal held that whether or not a libel action could be decided without a jury under s.69 (1) depended upon a number of considerations, such as whether the jury would lengthen the trial, make it expensive, or documents prove to be too complicated for a jury (McDonald’s v Steel and Morris [1995]). In all other civil cases, there is a presumption against trial by jury although, under s.69 (3) of the SCA 1981, the judge has the discretion to order a trial by jury. The guidelines for the proper exercise of this discretion were laid down by a full Court of Appeal of five members in Ward v James [1966] 1 QB 273. This was an action for personal injuries sustained in a motor vehicle accident. The Court of Appeal laid down the following guidelines: a) The judge’s discretion is not absolute but must be exercised judicially; b) Normally, personal injury cases should be tried by a judge sitting alone so as to achieve the three basic objectives of assessability, uniformity and predictability of awards of damages; c) A jury is civil cases should be used only in exceptional circumstances, such as where there is substantial dispute about the facts (Ingman, 2002).
The complexity of fraud trials with evidence concerning complicated financial transactions and tracing of money, requiring knowledge of accounts and accounting practices, and share dealings and complicated methods of cheating. Yet the jurors in these trials will not have been subject to even a literacy test. Fraud trials often take three to six months and so only those who are available for such time will sit. This means that such juries will be dominated by the unemployed, the retired, those who do not work or those have jobs they will not miss or be missed from, such as manual workers. These will be the type of persons who are not used to sitting still trying to absorb a mass of detail.
The case for the abolition of the jury on the ground that jurors lack the competence or opportunity to perform an investigative search for the truth has been argued most persuasively in the case of serious fraud trials. In early 1995, the case of R v O’Callaghan [1995] collapsed at Newport Crown Court after a period of six months because the trial judge ruled that the evidence had become too difficult and unmanageable for the jury. It has said to cost the courts an approximate £2 million pounds. If trial by jury is generally statistically insignificant, it cannot be denied that it is still of major significance in the determination of the most serious cases. Even this role has not gone without scrutiny, however, and the Roskill Committee on Fraud Trials (1986) critically examined its role in complex criminal fraud cases and in its report to recommend the abolition of trial by jury in such cases. Instead, the trial judge as it stated, should decide cases with the help of expert assessors such as accountants and auditors, who have the ability to assess the complicated evidence, ask relative questions, and generally perform an investigative function of the sort that a traditional jury in an adversarial trial is incapable. The Roskill Committee did not go so 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 every year. However, the government declined to implement the recommendations of the Roskill Committee and instead introduced procedures designed to make it easier to follow proceedings in complex fraud cases.
By contrast the Royal Commission on Criminal Justice (1993) recommended retention of the jury for serious fraud cases as a continuing safeguard for the accused (i.e. the right to be tried by his equals), but the greater efforts should be made by trial judges and counsel to simplify the issues for the jury and to encourage proactive participation from jurors by allowing more questions from them to clarify points on which they are confused. However, the Commission evidently had doubts as to whether such a change of approach would succeed because it also recommended that serious fraud crimes might be better to deal with by regulatory, rather than criminal, penalties.
In the Criminal Justice Bill 2002, a range of proposed reforms would reduce the number of trials by jury. Judges will be allowed to sit alone in serious and complex fraud trials and possibly also in organized crime cases. Judges will also be able to dismiss a jury and hear a case alone if they believe the jury has been intimidated. Defendants will also be able to opt for judge-only trials.
One of the difficulties in making a rational assessment of the operation of juries is the prohibition on research into such operation imposed by s.8 of the Contempt of Court Act 1981. The Royal Commission also recommended that s.8 should be amended to permit genuine academic research, and until this is done it will be speculative to attempt any appraisal of the ability of a passive group of twelve lay people to get at the truth of an issue presented to them on an adversarial basis. In civil cases the same problem exists, but it is interesting to note that the concern over the use of a jury is such cases reached such a point that the House of Lords declared a strong presumption against jury trial in most types of civil cases: Racz v Home Office (1994).
