Not Saussure

March 21, 2007

Trial by Jury

Filed under: civil liberties, Law, Politics — notsaussure @ 11:53 pm

Bit of a shame it got rather eclipsed by pre-budget speculation since the matter is of some import, but the House of Lords have kicked the proposals, approved by the Commons, to restrict trial by jury in complex fraud cases into the long grass.

They’ve voted to delay further debate on the Fraud (Trials Without a Jury) Bill for a further six months, in the hope that the new Prime Minister and his cabinet will have better things to do with their time than try to find parliamentary time to reintroduce the measure.

The whole debate is well worth reading, and not just because the quality of the put-downs is higher than that in the Commons or because Lord Elystan-Morgan quoted the immortal lines from Lord Devlin’s Trial By Jury:

The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

A fact that frequently gets lost in newspaper discussion of this issue is that the main argument for removing trial by jury in complex fraud cases isn’t that they’re too complicated for the jury to understand. They may well be too complicated for journalists to follow, and they’re certainly frequently very complex and time-consuming to investigate, but all sides — including the government — agreed that this is not, in practice, a problem; Lord Goldsmith, opposing the wrecking amendment, began his unsuccessful defence of the measure by saying,

Let me make this clear: we do not found our case for this measure upon the proposition that juries are incapable of understanding the evidence in fraud trials

and several peers referred to the research conducted by Professor Sally Lloyd-Bostock as part of the review, debated by the Lords last June, of the collapse of the Jubilee Line case. Whatever the jurors’ problems with the case — its length and the boredom of some of the proceedings in particular — the complexity of the issues and the evidence wasn’t one of them. Several peers, too, referred to their own professional experience at the bar in support of this; for what it’s worth, I’ve canvassed a bit of opinion from barristers who’ve prosecuted and defended in complex fraud cases and they’re unanimous that, provided the prosecution and defence present the evidence properly, fraud cases aren’t difficult to follow. They’re frequently very time-consuming, because of the sheer amount of evidence that has to be introduced, but they’re not particularly complex.

It’s a bit like a conjuring trick in a way; it may be impossible to work out how the magician achieves his magic trick, but once it’s explained to you, it’s frequently blindingly obvious. I used to know on of the detectives who worked in the SFO; she said, too, that frauds took a lot of investigating and proving and she was initially baffled by the evidence but once the SFO’s accountants explained to her and the other police officers what they thought had been going on and what she and her colleagues should be looking for, it was pretty straightforward. It’s just rather laborious at times finding the well-concealed needles in the haystack of paperwork.

The main argument for getting rid of juries seems to be not the complexity of the case but the time some fraud cases take to try. This, as several Peers agreed, is a real problem, and one that places huge burdens on jurors, but it’s a problem that’s best tackled by proper case management rather than by altering the fundamental principle of English law of which Lord Devlin wrote. As many peers pointed out, despite the government’s assurances that it has no intention of doing away juries in other cases, it’s not just fraud trials that can take a long time to try; the fertiliser bomb trial, in which the jury has just gone out, has been going on for a year, after all.

As Lord Kingsland said in the debate,

many other sorts of trials are also long and complex. There are health and safety trials, narcotics trials, many trials relating to child abuse and terrorism trials. Many of these trials are equally lengthy and equally complicated, and often involve vast amounts of documentary evidence. What is the difference between a long and complicated fraud trial and a long and complicated trial of many other issues? I suggest that there is no difference whatever; so how long will it be before the Government come up with another Bill dealing with another section of criminal law in which it is alleged that a jury is simply incapable of understanding the matters, or that the matters are far too burdensome for a jury to get to grips with?

As to the length of fraud trials, several contributors pointed out that other jurisdictions manage to deal with them more expeditiously; as Lord Thomas of Gresford noted,

The trial of one of our number, the noble Lord, Lord Black of Crossharbour, is about to start in Chicago. It is said that there are 2 million documents. It is a trial with a jury and it is estimated that it will take four months. That gives you some idea of how, with a proper approach, a trial can be confined.

In the course of a powerful speech, the Labour peer Baroness Mallalieu said

Jury trial matters. It is one of the main reasons why our criminal justice system is still the most respected in the world. Justice is done in public. Our criminal law is not just the province of lawyers, but in every criminal trial, the law is interpreted in a practical way by 12 lay people—they are usually lay people—in a way that, through their verdicts, sets public standards of morality and honesty that reflect the changes in society. Juries are largely incorruptible and, most importantly, as others have said, they command public confidence as no individual can, however distinguished a lawyer he or she may be. What is more, juries get it right more often than any other system.When the Labour Party came to Government in 1997, I never thought that just 10 years later I would be saying to a Labour Attorney-General, trust the people. Jury trial and its continuation for all serious allegations of crime is not just of historic importance and is not just of importance to woolly liberals who have been dismissed by recent Home Secretaries; but, apart from throwing away 700 years, it is, or it should be, of importance to anyone and everyone who cares that those who commit crimes are convicted and those wrongly accused are not.

How ironic, too, that it should have to be the House of Lords that, yet again, protects us all from the democratic Commons.

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  1. As I understand it, one of the main reasons these trials can be conducted so fast, and successfully, in the US is that they make such massive use of plea-bargaining by lesser accomplices in the frauds.

    Given that plea-bargaining is almost as equally unpleasant as not having a jury, isn’t it just the case that they’ve made one nasty bargain, and our Government want to make another? What do you think?

    (apparently Black’s defence is going to make great play of the deal Radle did as well – I’d have thought juries might be highly sceptical of evidence that’s been obtained by such massive arm-twisting by the state)

    Comment by alabastercodify — March 22, 2007 @ 12:59 pm

  2. I don’t know enough about the way American fraud trials are conducted to comment with any authority on their use of plea bargains by accomplices, but I’d be surprised, on their own, they speed up a prosecution that much since, if the remaining defendants still contest the case, it’s still got to be proved against them.

    It’s producing and proving the potentially massive number of exhibits that normally causes the delays; I don’t care what deals Black’s accomplices may have done — that can’t be what’s responsible for apparently making possible to run a case involving 2 million documents in four months.

    The only way I can think that they’re able so to do is by reducing most of the documents to agreed evidence and admissions, leaving the jury free to concentrate on the matters that are actually at issue between the parties.

    Comment by notsaussure — March 22, 2007 @ 5:32 pm

  3. […] Other than the above I can add nothing to Not Saussure’s excellent article. […]

    Pingback by Lords say no to Fraud (Trials without a jury) Bill « UK Liberty — March 22, 2007 @ 5:48 pm

  4. The explanation I read is that rather than have to show the jury each and every one to those 2 million documents, show them how they fit together, and then convince them that your interpretation and not the defence’s is the right one, it’s much easier to have someone in the witness box saying “yes there was fraud, I was involved, this is how we did it and that man in the dock was part of it”.

    Thus attempts by the defence to simply dump confusion on the whole process is neutralised at the outset by the simplicity of testimony.

    I believe they also have specialist judges who manage the trials v aggressivly.

    Comment by alabastercodify — March 22, 2007 @ 11:00 pm

  5. I can see that it must help the prosecution no end to have someone who’ll confirm that the way they opened the case is the way things actually happened, but I don’t see how that, on its own, cuts down the time; you still need the cooperation of the defence, who could otherwise still insist that the chap who’s made the plea bargain takes the court through every single document and shows exactly how he did it and how he says the other defendants were involved.

    I think the answer must lie in the aggressive trial management rather than in plea bargains.

    Comment by notsaussure — March 22, 2007 @ 11:19 pm

  6. And ‘aggressive trial management’ does not jive well with the presumption of innocence, to my mind.

    Comment by James — March 24, 2007 @ 12:24 pm

  7. I think you may be misled by the term ‘trial management,’ James. It’s mostly to do with the pre-trial procedure, and involves the judge getting the two sides to agree as much evidence as possible and concentrate on the matters that are actually in dispute between the parties.

    It doesn’t really work in anyone’s favour; I’ve certainly known it to work very much in favour of the defence, because it can show up the weaknesses in the prosecution case. There was a big trial I was involved in not so long ago, where exactly that happened; because the judge insisted on letting the prosecution call only evidence of what they were trying to prove, rather than evidence of generally suspicious circumstances, it rapidly became clear how little real evidence there actually was against the defendants, and the prosecution collapsed.

    Comment by notsaussure — March 24, 2007 @ 1:26 pm

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