Clifford Chance

The recently published Independent Review of the Criminal Courts ("the Review") authored by the eminent retired judge Sir Brian Leveson has brought renewed attention to the jury system in England and Wales, and whether jurors are best placed to determine guilt in some types of trials.

Jury trials are often seen as fundamental to the criminal law system in England and Wales. Indeed, most members of the public will have some understanding of what a jury is, and the responsibility bestowed upon the 12 individuals who must decide on the guilt of their peers. However, their suitability for serious fraud trials, which typically involve weeks or months of considering complex and voluminous documents, has been a recurring question for judges and governments. The Review contains the most concrete suggestions to date that these types of trials in England and Wales may be more appropriately and efficiently dealt with without a jury.

Unsurprisingly, this proposal has met with considerable scepticism and resistance. Significant structural and practical changes would be required to give effect to it. It is a proposal born of recognition that decisive action is needed to address what is widely acknowledged to be an emergency within the criminal justice system. Its principal aim is to reduce the delays (and the accompanying risks of prejudice and distress) which are now routinely experienced by defendants and all other parties to contested criminal cases, by reserving those cases which consume the most court time to professional decision makers. With the backlog of contested criminal cases at an all-time high, and defendants facing years-long waits before their case can be decided it is clear that change, of some sort, is critical.

No decisions have yet been taken about whether any proposal to reduce the role of juries in any types of cases will be implemented (whether in whole or in part), or how this could happen in practice. However, given the acuteness of the current difficulties facing the criminal justice system, it is more likely than ever before that the UK Government may take at least some aspects of this suggestion forward.

What is proposed?

Sir Brian Leveson has identified three particular types of cases as potentially suitable for trial by judge alone:

• those in which the defendant elects to dispense with the right to jury trial (which would still require the consent of the judge);
• serious and complex fraud cases, which are defined as those involving "hidden dishonesty or complexity outside the understanding of the general public"; and
• other cases of "exceptional length or complexity".

Drawing in part on models adopted in other comparable legal systems (in particular New Zealand), the Review proposes two potential models:

1. Resolution by a "Fraud Panel" – the Review envisages that this panel would be comprised of a Crown Court judge and two "qualified lay assessors", who would be individuals with "relevant commercial and financial expertise and some knowledge of the criminal justice system". At present, no further guidance is provided on the relevant background or experience of the lay assessors, although the Review acknowledges that it would be necessary to have in place transparent arrangements to select an appropriately diverse and well-qualified bank of assessors. The Review notes that this model has been proposed and rejected several times already, and Sir Brian makes clear that this is not his most favoured option for serious and complex fraud trials; or
2. Trial by Judge alone – the Review outlines the potentially significant time savings which could be realised by dispensing with the need to explain in detail the concepts and commercial minutiae which can often be quite alien to juries. It notes that a shift to this model would not require major legislative change (since it is already open to prosecutors to apply for complex trials to take place without a jury where they would impose an excessive burden on jurors). This option is put forward as the primary recommendation for serious and complex fraud cases. The Review separately suggests that judges should be able to direct that other cases of "exceptional length or complexity" should be tried by a judge without a jury, although it does not prescribe these types of cases.

In addition, as part of a separate recommendation, Sir Bran has suggested the creation of new arrangements whereby any either way offence (i.e. any offence which can either be dealt with in the Magistrates' Court or the Crown Court) would be dealt with by a new "Crown Court Bench Division" – a panel composed of one judge and two magistrates (and no jury).

Which cases would be tried without a jury?

The Review leaves open the questions of which cases will feature sufficient levels of "hidden dishonesty or complexity outside the understanding of the general public" or which may be of "exceptional length or complexity" justifying trial without a jury. These questions have been deferred. Sir Brian has expressly rejected the idea that the availability of juryless trials in serious and complex fraud cases should be confined to offences prosecuted by the Serious Fraud Office, and has instead noted that he is "entirely satisfied that it is possible to construct a definition based on existing legal definitions that would provide the correct framework for identifying the pool of cases that would be better tried without a jury.".

In practice, answering this question (and similar questions which may arise where it may be suggested that trials outside the realms of serious and complex fraud should be tried without a jury) may not be so straightforward. Large numbers of cases would fall within the broad categories identified in the Review. The question of whether cases should be tried by jury will be of considerable importance to individual (and, in the rarer cases where this is applicable) corporate defendants. There may not be unanimity between co-defendants about whether the case is suitable to be determined without a jury. These are all factors which may lead to challenges to the allocation of cases to a judge-led track, and which ultimately may dilute the time and cost savings the proposal is aimed at achieving.

What might happen next?

The Review suggests that practical questions such as those raised above should be addressed in a new Practice Direction. If these proposals are taken forward, much will rest on the clarity and thoroughness of this guidance, which is likely to be the subject of considerable debate between the judiciary, prosecutors and other criminal lawyers seeking to safeguard the interests of those who in future may become defendants in criminal proceedings.