50 years on the inmates of New Labour have placed on the statute book provisions which remove trial by jury in three separate categories of serious cases - cases of serious or complex fraud, cases of jury tampering, and cases with sample counts. In all these provisions the trial may be conducted by judge alone. Other provisions may follow: serious or complex cases not involving fraud, serious murder or complex drug trafficking trials; terrorist trials involving the security forces.

Is this the beginning of the end for trial by jury? Over the years there have been many debates about offences at the bottom end of the scale and where the line should be drawn for jury trial, but never before about offences at the top end. Should these measures be opposed and if so why?

Most observers would identify three essential and closely related characteristics of trial by jury (or strictly speaking, trial by judge and jury), characteristics which are so important and vital that they have survived the test of time. First, trial by jury is trial by the people. The State sets the framework: it declares the criminal law, it brings the charge, appoints the judge and summons jurors to attend. But the outcome belongs to the people.

And in the 21st century that means a wide cross-section of the people. 50 years ago about 1.5 million of the population were eligible to serve and about 80,000 were called to serve. Now each year 480,000 people are summoned by the Jury Central Summoning Bureau.

Secondly, trial by jury is a two-way process which befits a true democracy. The defendant places himself at the mercy of the people. And the people, just as they exercise their democratic right to vote, discharge their duty as jurors to their fellow citizens. De Tocqueville described it as “a peerless teacher of citizenship”. Lord Bingham as Chief Justice praised it as “a greatly-prized feature of our constitution”. Lord Falconer wrote in January 2005:“Jurors provide an invaluable public service. There are few public duties that carry so much responsibility.”

Thirdly, the process of trial by jury has been shown to be a flexible one. It has adapted to change. Changes in the composition of juries, changes in procedure, in evidence, in the offences they have to try.

It is for these reasons that public confidence in trial by jury remains high. It probably always has been. In 1713 Sir Matthew Hale said that “Trial by a jury of 12 men … seems to be the best trial in the world.” Blackstone said the same in his Commentaries. So did Devlin in his Hamlyn Lectures in the 1950s. Only shortly before, the distinguished Royal Commission on Capital Punishment had given trial by jury a resounding vote of confidence. Nearly all their recommendations were founded upon complete trust in juries: “We have been struck by the almost unanimous tributes paid by the judges and other experienced witnesses to the reliability and common sense of British juries, and … the qualities they have always displayed in dealing with the issue of guilt and innocence.”

In 2002 a Criminal Bar Association survey found that 84% of people trusted juries to come to the right decision. More than 80% thought that jury trial would be fairer than trial by judge alone. In 2004 the Department of Constitutional Affairs openly reaffirmed that public confidence in the jury system was high. It may be only a small part of our criminal justice system – only about 1% of criminal cases in England and Wales go before juries – but it is seen by the public to be a vital part.

Why then has this Government led the way to trial by judge alone? Why, if confidence is high, should the Government turn its back on a tried and tested system? The first thing to be noted about the changes is that they are piecemeal. There is not a consistent thread of principle behind them. It is not as though the Government has said it is time for a general change: “Let us try non-jury trial for a specific range of serious offences. No system of criminal justice is perfect. Let’s try something new.” But the Government has not said that, probably because they would expect to lose the argument in principle.

The most controversial provision is Section 43 of the Criminal Justice Act 2003, which provides for trial by judge alone in serious or complex fraud cases. This is the flagship provision. Section 43 permits the prosecution, not the defence, to apply for the trial to be conducted ‘without a jury’. The pre-condition is that the length or complexity of the trial will be ‘so burdensome’ to jurors that the interests of justice require trial by judge alone.

Section 43 became stuck in the ‘ping-pong’ phase of the Bill last year – the desperate last minute attempt of a Government with a large majority in the Commons to get the Lords to agree but failing. Having been rejected by the House of Lords, Section 43 was only allowed on to the statute book on condition that the Government obtained an affirmative resolution of both Houses before it was brought into force. Meanwhile the Attorney General undertook to consult widely.

The Attorney General consulted ‘widely’ on 24 January 2005 between 10am and 12.30pm in a room in central London. Five speakers, very senior judges and prosecutors (but not the Director of Public Prosecutions), were chosen to speak against trial by jury. Nearly everybody else, including the Bar Council, the Criminal Bar Association, the Law Society, the Council of Circuit Judges (whose members will be asked to try these cases), the Conservatives, the Liberal-Democrats and Justice, all of whom opposed the abolition of jury trial, had to press their cause as also-rans.

The predominant view of those present during the consultation meeting was that if trial by jury were removed the best alternative would be trial by judge alone. Section 43 provides no other mode of trial and this was the Government’s favoured option. However, in November 2005 the Government was reported to be reconsidering their position because they feared losing another vote (The Times, 16 November 2005). It was said that ministers were looking at the option of a judge sitting with a ‘mini-jury’ of lay assessors.

These options should be opposed. If trial by jury is to remain as the standard bearer for serious cases it should remain for all serious cases, and not just a few which a judge has power to decide. Confidence in trial by jury remains high. The vast majority of judges who try serious fraud are against change.
Nor is trial by jury failing to produce an acceptable level of convictions in serious fraud cases. Recently the conviction rate has been as high as 86%, much higher than the average rate of conviction in the Crown Court. In Montreal, for example, where prosecution and defence can elect judge alone trial, defendants prefer to avoid jury trial because the conviction rate is higher.

Section 43 is therefore controversial because it removes trial by jury for serious cases for the first time in the history of criminal justice in England and Wales. But it is also controversial because of the ‘too burdensome’ test. In practice it is likely that this vague test will be applied unevenly and with apparent injustice. Take borderline cases. Why should one man be allowed trial by jury and another in similar circumstances be denied it? Is a two month trial with banking documents too burdensome? Is a three month trial without banking documents too burdensome? Many trials are a real burden, because of the subject matter involved, as in the Soham child-murders case, but that is no reason for relieving jurors of their duty. Or will burdensome murder cases be next?

The real problem here is long trials. The answer is not to scrap jury trial but to de-burden long cases. If the trial is ‘too burdensome’ for jurors it is probably too burdensome for everybody else. The jurors who spoke out after the collapse of the Jubilee Line case said that they were quite able to understand the issues in the case. Their problem was the length of the trial. Unduly long cases never make good justice.

The Criminal Bar Association’s 10 point plan to shorten long trials suggests a number of ways to tackle this problem. It involves serious choices for prosecutors, tough decisions from judges and more enforced co-operation from the defence. It proposes cases with fewer defendants in the dock, dividing the case up into sections and removing unnecessary sections, simpler presentation, and greater use of admissions. When the issue in most fraud cases is not whether there was in fact a fraud but whether the defendant was a party to it, much can be done to shorten the trial. More simple, more clear, less long - these are the bywords for better justice. The Lord Chief Justice issued a Protocol in March 2005 to deal with some of these problems. It may not go far enough, but at least let it have a chance to work before scrapping trial by jury.

Trial by judge alone is wrong in principle and unnecessary. The other option of trial by judge with lay assessors, a ‘mini-jury’, is equally wrong in principle and unnecessary. The Fraud Trials Committee Report (the Roskill Committee, 1986) recommended something rather different, trial by judge sitting with expert assessors. But it has never been implemented because, as with trial by judge sitting with lay assessors, it is fraught with problems of selection, procedure and decision-making. It also lacked support, notably from the 1993 Royal Commission on Criminal Justice. A mixed tribunal of a judge sitting with lay assessors would have a down-graded appearance, looking like a tribunal trying appeals from the magistrates’ court. There would be little point in removing juries and replacing them with a smaller number of lay members for the sake of appearances.

Trial by jury should be retained for the trial of all serious criminal offences. It is a mode of trial which is popular, familiar, tried and tested. It has also been shown to be flexible, capable of adapting to change. Now is the time to bring new reforms to modernise it and to reshape it, particularly with a view to shortening long cases, including serious and complex fraud cases. It is not the time to remove trial by jury.

Peter Thornton QC is Head of Chambers at Doughty Street Chambers. He is an editor of Archbold and on the editorial board of The Criminal Law Review

s.