Judge Alone Trials: Time For Change?
For many years there has been debate in legal quarters as to whether a defendant’s right to elect a trial by a jury of his peers should be fettered. This issue was most recently considered by the President of the Queen’s Bench Division, Sir Brian Leveson, in his Review of Efficiency in Criminal Proceedings, published in January 2015. Sir Brian proposes that trial by jury should remain the primary form of trial for the more serious offences triable on indictment but that this should by subject to two exceptions: the first, that Defendants in the Crown Court should be entitled with the court’s consent to opt for trial by Judge alone; the second that in serious and complex frauds the nominated trial Judge should have the power to direct trial by judge alone.
The benefits of a Judge alone trial in serious and complex frauds are debatable. Such trials tend to be lengthy resulting in a substantial intrusion on jurors’ lives and creating the risk of delays should jurors fall ill, and, it is argued may involve issues that are simply too complex for jurors to understand. On the other hand there is a strong public interest in such cases being tried by a jury of one’s peers and the prosecution tailoring its case accordingly so as to make it readily comprehensible to all.
The Leveson review noted, “it is clear that the very real expense of exceptionally long trials would be reduced if Judges (with assessors) conducted these trials. First, they would understand (or far more readily understand) the financial and commercial context, likely to be entirely foreign to those not involved in the relevant business world. Second, they could pre-read and direct the parties to the central issues thereby avoiding what would otherwise be the necessary deployment of a great body of complex evidence.” Further, the allocation of a trial Judge at an early stage of the proceedings would allow for improved case management thus reducing the need for interlocutory hearings and the overall length of the trial.
May there, however, be benefits to trials by judge alone in all matters triable on indictment. The right to elect trial by judge alone is an effective feature of many other common law jurisdictions based on that of England and Wales. The review noted, “it is a simpler, speedier and cheaper procedure than trial by jury. It may also be an attractive option for defendants”.
Possible reasons include:
- Defendants with ‘technical’ defences who wish a verdict to be accompanied by appealable reasoning or who, in any event, want a fully reasoned decision;
- Some defendants, often in cases which are factually or legally extremely complex have a real anxiety that a jury will not be able fully to understand their case;
- Defendants who are charged with offences that attract particular public opprobrium, such as sexual/sadistic violence, or from minorities or sects who may consider a Judge to be a more objective tribunal than a jury;
- Where there is publicity adverse to the defence; and
- Defendants in cases turning on alleged confessions or identification, where Judges tend to be more rigorous in the weight afforded to such admissions and in their assessment of evidence of purported identification than juries tend to be.
Brian O’Neill QC and Fiona Robertson have recently undertaken trials in the Cayman Islands in which a defendant’s right to elect trial by judge alone is enshrined by statute. Section 129 of the Criminal Procedure Code (2010 Revision) provides:
“129. (1) If an accused person is of the opinion that, due to the nature of the case or of the surrounding circumstances, a fair trial with a jury may not be possible, he may, at least twenty-one days before the date of the trial or the date of arraignment, whichever is earlier, elect to be tried by a Judge alone; and such election shall be made by notice in writing addressed to the Clerk.”
The benefits of a judge alone trial noted by the Leveson Review are apparent in the Cayman Islands justice system and defendants often have strong views on whether they want a judge alone trial. Defendants whose trials are likely to be document heavy or which are likely to involve legal argument or legal technicalities invariably elect judge alone trials. Cases in which identification and the Turnbull guidelines are likely to be the trial issue usually proceed by judge alone as do trials in which inconsistent accounts have been given by the witnesses. Hostile attitudes towards certain ethnic groups or certain crimes also influence a defendant’s decision on mode of trial – a recent spate of murders and armed robberies has encouraged defendants to elect judge alone trials in an effort to avoid the mob justice mentality that may come with a jury trial on a small island.
The Leveson Review concluded that if the proposal of allowing defendants to opt for judge alone trials is worth pursuing, “it would be more appropriate to allow the Judge to decide on a case by case basis whether to accede to the defendant’s request for trial without jury, rather than imposing a general statutory limit on offences to which the option could apply. The Judge should decide the matter further to hearing representations from both sides. Further, the Judge should be entitled to override the defendant’s wish for trial by Judge alone if he (the Judge) considers that the public interest requires a jury, for example, in case of certain offences against the State or public order.”
Such an approach may, however, undermine the very advantages to be gained from allowing defendants to elect trial by judge alone. Giving the ultimate decision to the Judge creates a risk of inconsistent approaches being adopted in different court centres and amongst different judges within the same courthouse. In the Cayman Islands the right to trial by judge alone is an unfettered right save where there are multiple defendants in a trial. In such a case under section 129(5) the trial will only proceed with a judge alone if all defendants jointly consent to such procedure. Should one or more defendant refuse then the presumption of a jury trial takes precedence.
Although the election of mode of trial creates an extra matter on which defendants must be advised by their attorney, this system works well in Cayman – it creates certainty, helps to reduce trial issues and makes defendants feel more autonomous and engaged with the trial process.
Having seen judge alone trials work in the Cayman Islands it is arguably a system that could bring tangible benefits to the justice system in England and Wales. It would represent a significant change but such change must be embraced if our legal system is to continue to set the example to other jurisdictions across the globe.