WAIVER OF JURY TRIAL
The Roskill Commission of 1986 did consider the prospect of a choice by the defence (and possibly by the prosecution as well) adding an alternative tribunal of non-juries. But in the result, it opted for the nominated judge, chosen by a senior High Court judge or the Recorder of London, to choose the nature of the lay members who would be selected to sit on the Fraud Trial Tribunal.
The Commission thought that trial by jury should be dispensed with only if both parties consented, and that the mode of trial should lie only with the court. And on the question of the defence alone consenting, the Commission was far from satisfied that ‘many defendants would choose to be tried in this way’. Recent experience of a lack of such waiver in New South Wales and New Zealand, moreover, merely confirmed its doubts about the paucity of defendants who had so elected.But that was ‘in the early stages of our inquiry’ (probably 198485) in the light of the experience in New South Wales (introduced
in 1979 for ‘long and complex cases’) and in New Zealand (again in 1979, and not restricted to fraud cases). So limited an inquiry deserves to be comparatively reproduced. There appeared, moreover, to be no objection in principle to choice being elected, both by the prosecution and the defence, at the instance of ultimate decision by the court itself, whenever both parties agree. The Roskill Commission did not consider whether, if the court had to assent to the parties’ ‘views’, the mode of trial could not be judicially negatived.
The Roskill Commission, with implicit but not specific approval, did quote a valuable instance of a jury trial by judge and lay members:
Our attention was drawn to the fact that before 1978 the Director of Public Prosecutions could elect for summary trial in prosecutions under the Exchange Control Act 1947. These cases were usually heard in the City of London and went to summary trial in order to save costs and to secure a speedier result than trial by jury would allow.
Magistrates in the City were considered to have a better understanding of the complexities involved. Two cases in particular were described to us as ‘large revolving fund exchange control cases involving the defendants’ ingenious and very complicated use of abstract and esoteric exchange control concepts.’ In one of these cases the Chairman of the bench was an experienced lawyer, while the other two magistrates were a retired bank official who had worked on exchange control and a businessman with experience of the stock market [He was Mr Kenneth Corke, an experienced liquidator]. The case took about 30 days to hear, but the lawyers estimated that it would have taken up to three or four times that length had there been trial by jury. This was mentioned to us as a practical example of the workings of a tribunal in effect consisting of a judge and two specially qualified lay members.A judge sitting with lay members is the proposal most widely supported by those who gave evidence. Provided the lay members are well chosen, comprehension of the evidence would be at a high level. Knowledge of the background to the case, the terminology, customs and practices of the business in which the alleged fraud had been perpetrated, would be available. Provided the lay members were given an equal vote on the matter of the verdict (though not on questions of law or sentence), they could demonstrate their independence of the judge, if necessary by outvoting him. If the tribunal consists of the judge and only two lay members, the problem of assembling and maintaining a list of suitable candidates to serve would not, we think, present much difficulty. 10
I have to confess that the Chairman of the Bench on both occasions was none other than myself. I remember it well, and have since (in 2012) explained how it came about, in a book by the Magistrates’ Association on 675 years of the lay magistracy.11 In paragraph 8.51, at page 147, the Roskill Commission, on that evidence, concluded: ‘In the light of the evidence put before us we think that a judge and two lay members would be the most appropriate tribunal to try complex fraud cases.’
The waiver issue - which essentially is the act of waiving a right - is commendably up for grabs. A prime consideration is the nature of jury trial.
The protagonist of trial by jury reasserts that on a matter of serious crime (indictable, or at the sole insistence of a public prosecutor), there is the inherent obligation to criminal offences being tried by one’s peers (if, only since 1967, a qualified majority of the 12 are in agreement). Strictly speaking, an obligation to undergo unequivocally (subject only to a judicial determination that there has been no abuse of the criminal prosecution in framing the case against the accused) is not a citizen’s right. It is a duty. As such, it cannot be waived. But if it is properly (if not jurispruden- tially or philosophically) regarded as a ‘right’, the accused must be allowed the choice of mode of trial. That much has been considered politically so in both New South Wales and New Zealand, if not also in the civilised legal world. (It exists, I think, in some jurisdictions in the USA.) (Parenthetically, it is noteworthy that Parliament has recently - in section 11 of the Defamation Act 2013 - ruled that libel cases are to be tried without a jury unless the court orders otherwise.12)There is, moreover, the question, raised by the Roskill Commission, that its recommendation of a Fraud Trial Tribunal would
considerably reduce the length and cost of trials, while at the same time increasing the prospects of a sound verdict being reached. The savings of judges and court time and the greatly improved comprehension of the matters under enquiry would draw more, if not all complex fraud cases to be brought to trial and provide a further deterrent for those who seek to engage in fraudulent operations.13
The statement in January 2013 by the Director of Public Prosecutions, Mr (now Sir) Keir Starmer QC, of examples of invigorating pursuit of tax evaders and other fraudsters is further stimulus to such
11 See Ch 14 above.
12 For an early example of the legislation in action, see Yeo v Times Newspapers [2014] WLR(D) 383.
13 Roskill, Fraud Trials Committee: Report (London, HMSO, 1986).
prosecutions in up-to-date charging standards - as indeed is the extended financing by the Treasury of the Serious Fraud Office. The advent of rising costs and the diminution of public funding through the legal aid scheme deserves a fresh look at the financing of public and private sources to fulfil the existing services of criminal justice. The threatened strike action by the Bar and their disinclination in December 2013 to represent eight defendants in a serious fraud trial provides a hint for a less expensive solution. I do wonder, however, whether Sir Keir was right to urge higher prison sentences for the more serious fraudulent offences. But the severity of punishment for property crimes is another subject for another debate.CONCLUSION
What next? If for the foreseeable future the prospect of trial by jury - ‘an equally important component of our liberties’ - is here to stay in its purest form, there is no reason to discern ways of modifying the system. And I do not stop to consider the outcome of the decision in November 2011 of the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium, the argument in favour of a waiver. We do not need to accept the recommendation in 2001 by Sir Robin Auld[178] that ‘with the consent of the court... it should be able to opt for trial by judge alone in all cases now tried on indictment...’. Not just in serious fraud cases, but in all cases of trial by jury the defendant should be free, if the court assents, to waive the right in favour of a non-jury trial. Serious fraud offences present an opportunity to experiment, and, being essential pragmatists in good government, we should give the idea a trial.