THE 2007 DEBATE
The Attorney-General (Lord Goldsmith) was at pains to limit the scope of non-jury trials. He explained that section 43 was not a general assault on the principle of trial by jury.
Nor was it about choosing between a fair trial and an unfair trial: ‘it is about choosing between modes of a fair trial’, and fairness required a different process in a small number of serious and complex fraud cases involving inordinately long trials with complex evidential information that became excessively burdensome for 12 jurors. Nothing has emerged in recent years to gainsay the sensible assertion that a select few cases of fraud would enhance the quality of justice if they were conducted by professionals rather than by the cumbersome and lengthy process of trial by jury. What conceivable evidence was there (or is there) to refute this general impression gleaned by those administering the system of serious frauds? There is evidence that there are undoubtedly comparable complex cases other than in serious fraud. But does that fact invalidate the case for singling out the serious fraud trial? The answer must be that the complexities of financial transactions are peculiarly not in the experience of the average citizen, unlike other serious crimes, such as domestic violence. The composition of the mode of trial is relevant, unlike almost all other forms of criminality that come before the courts of criminal justice. The only argument surrounds the ticklish issue of admissibility. A jury is shielded from hearing certain evidence that is not excluded from trials by professionals, but that difference may need attention in investigating the process of investigation of crime, as opposed to the appropriate mode of trial. Access to information other than in the courtroom raises an issue of importance.The most compelling - one might describe it as ‘arresting’ - point was in the speech by Lord Carlile of Berriew in the debate on 20 March 2007.
As a Liberal Democrat peer (and at that time not part of any Coalition Government, but a distinct advocate of civil liberties), Lord Carlile’s words are weighty, if not heavy with the expected logic of a distinguished lawyer and formerly the official surveyor of anti-terrorist legislation. I quote his words verbatim:[176]I agree entirely with the noble and learned Lord that, over the years, the Diplock courts [the non-jury trials in Northern Ireland which persisted from 1972-2012] have reached high standards of justice in Northern Ireland. I also agree with him entirely that there are certain classes of case in which, in this modern age, it is no longer possible to have a reliable trial by jury, but they are a very special class of case. They are not cases where the jury has to be there for a long time or has to make a difficult judgment; they are cases where the jury system is so undermined by, for example, intimidation or threats to jurors or sectarian conflict that it is simply not possible for the jury to return a reliable verdict.
So far, so good - a model exposition of the proposed reform! This dissociation from the Diplock courts in a tribally divided society did nothing to detract from the quality of judges, which is specifically mentioned. Similarly if the material is so complex and confusing to laymen in a jury, surely that tends to invalidate the mode of jury trial; it does not detract from the quality of judge alone in judicial expertise. But Lord Carlile goes on to elaborate this flawed distinction. He states - and once again I have no quarrels:
By no stretch of the imagination do fraud cases fall into that category [presumably ‘undermined... or intimidation of jurors']. This is an attempt at a pragmatic Bill; it is an attempt by the Government to persuade the House that, quite simply, fraud cases are too burdensome for juries. However, for reasons that I shall set out, I disagree wholeheartedly.
If the reasons ‘set out’ are criminologically a matter for serious argument (pragmatic or fundamental), it can hardly result in more absolute terms of rejection.
Lord Carlile, like so many of his colleagues, relies too heavily on opinion evidence, which frequently is far removed from professionalism. If the administration of the system can reasonably argue for a different, but acceptable mode of trial, what is there to negate their modest proposal that the judiciary should decide on an application which is the preferred method of an equitable system of criminal justice ‘in the modern age’ (which Lord Carlile rightly adheres to) calls for an alternative mode of trial.But how does Lord Carlile perceive this ‘modern age’? In a paragraph of his reasoning he said:[177]
Jurors’ determinations of fact are based on a collective view as lay people of the conduct of the defendant. A judge’s determination of fact may in some cases - I hesitate to say this in the presence of distinguished and retired judges in this House - be sometimes idiosyncratic and a great deal worse. The annals of the law reports are full of cases where judges have made serious mistakes; as I said earlier, jurors have made few.
Whatever may be said of Lord Carlile’s perception of the processes of the law, he cannot claim any empirical - let alone speculative - evidence of the decisions of jurors, unelected and unanswerable, giving monastic, monosyllabic utterances, compared with reasoned (and reviewable by way of appeal on fact and law) decisions of judges, however idiosyncratic or eccentric they may occasionally be in the civil jurisdiction. For criminal justice the jury is the inviolable determiner of fact and disregarder of law. Perversity is their option, infrequently though it is deployed. Lord Carlile’s pronouncement is no more reliable than that of the mythical visitor from Mars. Indeed, academics have ingeniously constructed the concept of what they like to call ‘jury nullification’!
If the sole criterion for testing the mode of criminal trial is the verdict of the decision-maker of the accused’s guilt or innocence (a rash assumption, at the best of times) then the differential is important. But empirical evidence suggests that the differential between the judge alone and the jury system is so marginal - it is judged at 1 per cent in favour of jury acquittals - that it cannot be used as the basis for a decision on whether one mode of trial is preferred to another. If, however, the criteria are the various aspects of the criminal process (including litigant satisfaction with that process) then the differentials matter. The fact is that criminologically we know little or nothing about the functioning of the system. The studies so far by Professor Cheryl Thomas are admirable, but they do no more than speculate that jurors behave responsibly.