A Modest Proposal For Judge-Only Trials In Fraud Cases

By David Corker
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Law360 (July 23, 2020, 3:18 PM EDT) --
David Corker
David Corker
Due to COVID-19, jury trials in England and Wales were abandoned in March. As of May 24 — the most recent tally — the backlog of outstanding crown court cases had risen to 40,526.

After months of efforts by the senior judiciary and Her Majesty's Courts and Tribunals Service to find a solution and ease the pressure, a trickle of jury trials restarted or commenced in early June. With social distancing guidance set to remain extant for the foreseeable future, the criminal justice system, unlike the National Health Service, is a public service that has been overwhelmed by COVID-19.

Each delayed jury trial is a threat to liberty and the rule of law. Justice is being denied to the presumptively innocent, to victims and to the public to stave off a collapse of the system. In the meantime, the civil and commercial court systems after a hiatus are back in full swing. Complex allegations of fraud are being tried by judges. The civil liberties of claimants and the rule of law are no longer curtailed.

There are several reasons for this contrast. The court estate, especially that of the Commercial Court, has for decades been better resourced and funded than its dilapidated crown court cousin. The principal cause for the disjuncture is the requirement that for determination of all not guilty pleas for serious offenses, a jury trial is essential. Socially distanced trials, where there is a panel of a dozen nonlawyer participants, have become a near impossibility other than for a few tokenistic cases.

Sentimentality Is the Enemy of Progress

Trial by jury is the cornerstone of our system and, as a dewy-eyed Lord Patrick Devlin once proclaimed, the jury "is the lamp that shows that freedom lives." It is steeped in our national heritage but if we cling steadfastly to these sentiments, we won't be persuaded to change.

The majority of jurisdictions do not consider that trial by jury in serious criminal cases is essential to fairness. We do not contend that our European partners and the bulk of those other countries, including most members of the Commonwealth, are tyrannies because they employ a judicial method of determining guilt or innocence.

It is often said that the jury is a repository of common sense, being best placed to determine whether a defendant has acted honestly. However, in civil litigation where there is an allegation of fraud or dishonesty to be contested — or allegations that bribes were paid to secure particular advantages — we do not allege that a civil judge is inherently an unsuitable trier of character or evidence. English courts are the preference of contracting parties the world over if a dispute arises involving alleged fraud.

Finally, it is a myth, because it helps to evade responsibility for contemplating change, that trial by jury is a cornerstone. Fewer than 2% of criminal trials are attended by a jury. What is true is that this 2% utilizes a huge proportion of the resources of our criminal justice system and that lengthy trials (over a month) burn those resources quickly.

The Right to Choose

Is it sometimes right to hold that it should be up to the accused to say how they want their guilt or innocence to be decided? There is potential for error, if you give people a choice, that an accused in an emotive state will make an unwise decision.

In thinking about the judge-only option, we need to be wary of being led by sentiment coupled with self-interest. A judge-only tribunal would probably lead to a paradigm shift in trial dynamics so that it precipitated a more inquisitorial system where the style of advocacy would consequently dramatically change.

This shift is already underway. Allowing adverse inferences from silence, requiring defense pretrial disclosure, and especially the litany of exhortation of trial judges via the Civil Procedure Rules and Court of Appeal judgments to become more managerialist is already moving us in an inquisitorial direction.

My proposal is modest. Any legally represented defendant prosecuted by the Serious Fraud Office or the Crown Prosecution Service's Specialist Fraud Division should have the right to demand a judge-only trial. Such prosecutions constitute a tiny proportion of criminal trials but, for the point already made, are a significant drain on resources.

The Zeitgeist

The introduction of this right is appropriate for four reasons unconnected to COVID-19.

My first reason is consequential to the drift or trajectory of our criminal law, which is most evident in fraud cases.

We have moved from a situation where the prosecution is expected to prove its case by calling direct oral evidence to one where it relies almost entirely upon circumstantial inferences to be drawn from the documentary record. What inferences to draw from largely agreed facts, as opposed to the credibility of a witness, has become the new normal. Often the prosecution only calls witnesses in order to have documents admitted as exhibits. This change has largely been driven by the common law, which has incrementally relaxed requirements to prove facts directly as a prerequisite for guilt.

I take two examples. The three Proceeds of Crime Act 2002[1] money-laundering offenses create a form of secondary liability, in that one cannot launder unless the property is the proceeds of a predicate crime. Since the late 1990s, the courts have gradually diluted the threshold for proving that such a crime ever occurred. Now the alleged predicate can be one of many unspecified types of offense to be inferred from the circumstances. No particular crime or offender need be particularized.

If this test is satisfied, then it becomes necessary to prove that the accused suspected that they were dealing with criminal property. In almost all prosecutions of these offenses, the prosecution relies on inference from their otherwise non-incriminatory words or conduct. The drawing of any adverse inference in both of these situations could be done as well by a judge as by a jury.

Corporate defendants are intrinsically likely to be amenable to a judge-only trial for similar reasons. Prosecutions of them are rarely simple. If this type of defendant disputes that its co-accused who is an individual was its directing mind and will (the foundation of its potential liability), it is likely and rationally to prefer a judge to determine this.

In a similar vein, take Section 7 of the Bribery Act 2010,[2] which requires it to be proven to the criminal standard that an agent of the company offered bribes. This section establishes that proof of this can be achieved solely by inference; no individual need to have been convicted. If the company wants to dispute that the bribery occurred, this is likely to involve a complex defense and possibly the calling of expert evidence. There is nothing improper or insidious in permitting it to make an election for a judge-only trial. One legitimate reason would be to achieve a resolution within a speedy time frame.

Secondly, the Criminal Justice Act 2003[3] effected profound change as to what evidence a jury could receive and treat as probative of guilt. The restrictions on the admissibility of hearsay and previous bad character material were largely swept away. This was summed up in the mantra, "Let the Jury Decide!" i.e., enable the prosecution to adduce material which the common law had hitherto proscribed as more likely to prejudice than assist the jury's task.

For many, this reform added a substantial layer of complexity and made the task of evaluation significantly more onerous with an enhanced risk of juror error. I share these concerns. These two types of evidence necessarily are more likely to be unreliable because they cannot be tested as rigorously and may be misinterpreted. The antidote is not an inscrutable verdict but a reasoned judgment which reveals the degree to which reliance was placed on such secondary types of evidence.

My third reason is that juries who are empanelled in cases scheduled to last more than a month are rarely a random cross-section of the public. The epithet associated with a jury trial, being tried by one's peers, is in such cases more honored in the breach.

Most people called up for jury service who care for young children or are self-employed or upon whose services their employer heavily depends will balk at the prospect of being obliged to sit in a courtroom for many weeks permanently on mute. They will seek to be excused and, if the anecdotal experience is correct, will be granted leave.

It is not that the public do not want to serve on a jury; they do and the vast majority are pleased that they did. Rather, it is that it has become unreasonable to expect many people to devote every working day over several months of their lives to the task and so they are managing to avoid it.

Finally, there is an ever-increasing dosage of noxious medicine having to be administered in an attempt to keep the patient alive.

The advent of the internet has meant that attempts to restrict jurors from becoming aware of information about the case other than from being in the courtroom are often futile. Whereas before the threat emanated from Fleet Street and terrestrial TV, high profile prosecutions now garner webpages galore published far beyond the frontier of any jurisdiction. Social media means that if we desire to, we can often find out a great deal about each other and, of course, a lot of it is false, as gossip often is.

Recognizing the threat to a fair trial caused by such prejudice, judges and the attorney general resort to ever-increasing bans and prohibitions. Injunctions or suppression orders banning any reportage about a trial are the latest draconian tools. But how far are we willing to let the state or judges go in an attempt to stifle the right of the media to report on matters of public interest?

In the wake of such censorship, admittedly all for a good cause, it has become justified to ask whether the baby is being lost along with her bathwater. Where an accused fears juror prejudice, why not allow them the remedy of a judge-only trial instead of a paraphernalia of restrictions that inhibits the freedom of us all?

The Thin End of the Wedge

For those who remain convinced that juries are the most effective safeguard against unfair prosecutions, this is their final argument.

It is essential to beware of bureaucratic arguments based on the virtues of rationality or consistency that can lead decent people in authority to do terrible things. Totalitarian states like China do not have a system of trial by jury and our own history shows us that the jury was sometimes a bulwark against a despotic king who believed that coercion was for the good of his subjects.

These are impressive reasons for the need to be vigilant in order to ensure that our long liberal traditions, of which trial by jury is one, are not endangered. I make my proposal at a deeply unattractive moment in the sense that we have in our country allowed the state to take control of our lives to a degree unprecedented even in wartime. A proposal about amending the jury system is thus even more likely to be met with a viscerally hostile reaction.

I make two comments in response to these fears.

First, there is not an immutable inevitability about my tinkering becoming a mere overture to an attempt to dismantle the jury system entirely. That has not happened hitherto in either Canada or Australia.

Second, we should look around us and realize that governments are already emasculating, albeit indirectly, the jury system.

Beginning with the Proceeds of Crime Act 2002, the arc of state policy in relation to alleged acquisitive crime has been to transfer litigation about it from the criminal to the civil law sphere. A panoply of asset freezing and forfeiture powers which commenced with powers to detain cash seized at a U.K. border has proliferated; now we have unexplained wealth orders in which law enforcement make allegations of crime that reverse the burden of proof and asset freezing orders, which permit lay justices of peace to determine the most serious allegations of crime in lieu of confiscation.

Encouraged by the Home Office, U.K. criminal law enforcement is already stealthily entering a back door marked "civil litigation," which bypasses trial by jury. De facto criminal law has de jure become civil. In order to reverse or at least arrest this trend, the criminal justice system and trials in particular need to operate more efficiently.

Even before the onset of COVID-19, in the central London crown courts the average length of time it took from first court appearance to first day of a trial listed for more than four weeks was at least one year. If the jury was to be discharged or hung, then the elapse of time from start to finish would extend into several years. It is therefore unsurprising that governments look for solutions in the civil sphere.

The recent trial in Bonn, Germany, of the two bankers involved in the cum-ex scandal is a model.

In that case, highly complex document-based evidence was quickly digested as it did not need to be laboriously presented in court. The parties submitted lengthy written pleadings, thus minimizing oral submissions. The court did not have to sit continuously so that the parties had time to reconsider their positions, and the trial amid the pandemic could be managed flexibly and a reasoned judgment delivered at the end of 40-day trial.

If those two bankers had been indicted here, their trial would probably have a six-month trial estimate with a start date in, at the earliest, autumn 2021.

COVID-19 could be a catalyst for necessary change. The virus will one day disappear and its incidence should not cause the end of jury trials, but the impact of the pandemic is nonetheless an opportunity. It is a moment of illumination where the unattractive features of the jury system are plainly in view and it becomes obvious that there is a solid case for reform. Progress and innovation are often the fruits of crisis.

David Corker is a partner at Corker Binning.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] http://www.legislation.gov.uk/ukpga/2002/29/contents

[2] http://www.legislation.gov.uk/ukpga/2010/23/section/7

[3] http://www.legislation.gov.uk/ukpga/2003/44/contents

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