POST-2007
It would seem politically wise not to envisage a return to section 43, although a change of administration in 2015 might influence its promoters to renew the arguments for reform.
On the other hand, the composition of the upper chamber of the House of Lords might incline the law reformers not to renew the March 2007 compromise. What then? The obvious alternative is to revive the alternative of the Roskill dissenter, Mr Walter Merricks, of 30 years ago. There is now an even more pressing need for a comprehensive review ‘not confined to a narrow band of an indefinable class’. Before I embark on the virtues and values of any mode of trial, there is one suggestion that addresses the ‘narrow band’ of serious fraud cases.There is one persistent claim by the jury-apologists that calls for comment. Citing commentators on the system, not excluding the dramatic, and oft-quoted, remarks of Lord Devlin - ‘the lamp that shows that freedom lives’ - expounding the constitutional guarantees of trial by one’s peers, are the claims to the citizen’s right to jury trial.
In the ‘battle over jury trial’ - to which Lord Kingsland referred in the 2007 debate - the progenitors of the rival arguments should at least remember this: jury trial (or more specifically, the English trial by judge and jury in which the latter is the distinctive fact-finder and decision-maker) is strictly not a right at all. It is a duty upon everyone indicted before the Crown Court for a serious offence - roughly 98 per cent of all crimes. Subject to what I have to say, the defendant has no option but must subject himself to the jury’s verdict - since 1967 a majority of 10 out of 12 jurors will suffice. It is at best, therefore, not a constitutional right, such as some advocates would wish, but a citizen’s obligation to place his reputation before 12 good men and women who have been selected generally from among the electoral roll.
(As an aside, only property owners could qualify before 1972.) The second thing to remember is that, apart from the monarch as Head of State, there is no other public institution in our democratic system of government that is unanswerable and unaccountable for its verdicts. It pronounces its decision monastically and in monosyllables. Subject only to the consequences of a fair trial under the authority of Taxquet v Belgium by the Grand Chamber of the ECHR, it is generally an acceptable mode of trial. And for the independence of the judiciary in the fairness of the mode of trial in England it has one distinctive disadvantage. The verdict of the jury is an exclusive interpretation of the result of a serious criminal offence, so long as the judge properly directs the jury. It is even more so for the appellate judge who must acknowledge the exclusive fact-finding role of the jury of 12 ordinary people. Trial by jury is an abdication of the judge’s function; he may sum up the factual material, but he may not have any say in the jury’s verdict.The protocol of 22 March 2005, dealing with the control and management of heavy fraud cases, provided that the best handling technique for a long case is continuous management by an experienced judge nominated for the purpose. If pre-trial case management on an intensive scale is essential, what can there be against allowing a defendant at least to request trial by judge alone? The interim report of the Fraud Review Team, set up by the Attorney-General in October 2005, recommended the possibility of specialised fraud courts with specialised judges, and the final report instigated the proposed legislation of 2006/7. Choice of criminal courts has long existed for the hybrid offences whereby defendants can elect a magistrates’ court or Crown Court trial. It cannot, therefore, be theoretically objectionable. Can the seriousness of criminality expel the precious element of choice? The ostensible objection is that it would be discriminatory. But all exercise of choice is just that.
The only obstacle to the introduction of waiver (or bench trial) is the fear, rational or irrational, that it would be regulated properly (by which is meant ‘the thin end of the wedge’ - a last-ditch plea for an indefensible argument). This is an unacceptable inroad upon the jury as the prime instrument of criminal justice. So is it time now for Lord Kingsland’s plea, five and a half years ago, to ‘battle over jury trial’?This is not the place to argue for or against the present system, but to point to the criteria for choice in a rational debate (we can put on one side the utterances of pleasantries in favour of or against the jury). If the sole test is the social acceptablility of trial verdicts, the topic is unanswerable. On the basis of inadequate empirical evidence of how the jury works (or not), the difference in result between judge-alone and jury verdicts is no more than 1 per cent. Parenthetically, prosecutionally, decision-making is reserved for juries in high-profile cases. But that apart, the consensus must be that in terms of result there is at most comparability. Neither of the protagonists in the debate can claim overriding virtue for one model of fair trial than another - that is, if the criterion is the verdict, without more ado.
But if one reads Article 6 of ECHR with objectivity, the test is the quality of criminal justice that determines the mode of trial as producing a quality service, and that must involve testing the process of criminal justice, including importantly the verdict, which is decidedly not decisive. That much is the outcome of the European Court’s verdict in Taxquet, which declined to evaluate the various modes of trial operative in the Member States of the Council of Europe. But that decision, which evaluated the evidential material requisite for admissibility at trial, did point to the issue of juristic value in the criminal trial process. Clearly, though, the constitutionality of a fair trial encompasses not just the attributes of the trial process; it includes both the investigation of criminality pre-trial and the outcome of the verdict, including the appellate process and the quality of the sentencing procedure.
There is also the perception of the whole process. Does the trial induce a sense of acceptance by the prosecutor and the defendant? Does the trial inspire public confidence in the system? It is assumed by criminal practitioners that the system does evoke the public’s confidence. But what evidence do we have for that supposition? I sense, impressionistically speaking, that until the Second World War the British had overwhelming faith in the jury system that was then in use. I adjudge that the support is still strong, but that there is a growing disenchantment with its validity. This is not yet sufficient to indicate a change. But, given a comprehensive review of the quality of criminal justice in the twenty-first century, we might be able to determine the future of the mode of criminal trial. I stop there to say that the need for a study of the criminal justice system in its nascent European setting appears to ripen. The two systems of the Anglo- Saxon and Continental justice systems should now be viewed in their binary, and not adversarial context. There is much to be learned from both of them in a world of mobile populaces (specifically in the growth of extradition), as the Royal Commission in 1993 under Lord Runciman acknowledged, but felt constrained by the Commission’s timetable to leave the matter for another day. That day has perhaps arrived. But that advent, for from distance at least not imminent, does not distract us from further debate and inaction. I would add only that the increase in extradition in Europe will lead to more comment.