Proposals to hold all complex financial crime trials before only ‘specialist judges’ miss the point, writes Jonathan Grimes.
According to Max Hastings, writing last week in the Daily Mail, ‘fraud trials must be held before specialist judges, the only people who can hope to understand the issues, rather than before juries’. This, he says, is the only way to prevent the regular collapse of trials of ‘financial crooks’ (by which he is really referring to bankers).
Hastings is right in that the UK has a relatively poor track record of successfully prosecuting complex financial crime (though not nearly as bad as he suggests) but he is completely wrong to suggest that the removal of juries is the answer.
This is not the first time, nor will it be the last, that this idea - or a variation of it - has been proposed. ‘Diplock’ courts have been used in Northern Ireland since the 1970s for hearing, without juries, certain terrorism-related trials, where there have been concerns about jury intimidation. The same risk is recognised by section 44 of the Criminal Justice Act 2003, which came into force in 2007, which allows a judge-only trial where there is a ‘real and present danger’ of jury tampering.
The first (and, to date, only) trial without jury under this provision took place in 2009. Interestingly, section 43 of the same act, which allows trial without jury for certain fraud cases, has never been brought into force. This is indicative of the unease with which many view the notion.
Juries are a fundamental part of our criminal justice system – a point that doubtless will be remembered and celebrated with the approaching 800-year anniversary of Magna Carta. Polls routinely find that the vast majority of people think jurors are fairer than judges in deciding whether a person is guilty.
It is easy to understand why. Juries don’t operate in a rarefied world where the principal participants wear strange outfits and use abstruse language. Their independence from the state, but also the judiciary, is enormously comforting. This matters because trust lies at the heart of the criminal justice system.
Society trusts the courts to be fair and juries help to maintain that trust.
Anyway, juries are pretty good at getting to the heart of the matter, even in complex cases. In the majority of trials the question is not what happened, however technical or mystifying that may appear, but why? What was the motivation of the defendant? Was he acting dishonestly? These questions turn on how a reasonable person would behave. And who better to determine the answer than 12 reasonable people?
If one wants reassurance about the ability of juries to make intelligent and reasoned decisions, one only needs to look at the verdicts they return in complex cases. Frequently in multi-charge and multi-defendant cases the jury will return a range of acquittals and convictions on the different charges, revealing the extent to which they have engaged with, and have understood, the evidence.
Trials don’t commonly collapse because of juries, or for want of ‘specialist judges’ (another of Hastings’ proposals – in fact most complex cases are already heard before High Court rather than circuit judges). Trials mainly collapse because prosecutors make mistakes. These mistakes are often for want of resources, resulting in a failure to investigate or prosecute the case fairly, which in turn can allow successful argument that the case should be stayed as an abuse of court process.
In short therefore: if you want to convict more bankers, don’t get rid of juries, don’t get special judges; simply increase resources available to the country’s investigators and prosecutors so that they can do a better job and make fewer mistakes.
Jonathan Grimes is a criminal law partner at Kingsley Napley LLP