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01 Apr 2010

Jury-less trials – erosion of legal bastion?

In an article in The Times, Peter Binning , partner, Corker Binning argues that the loss of jury trials will irreparably damage public confidence in the criminal justice system.

High cost of protection is eroding legal bastion

Frances Gibb: commentary

Jury-less criminal trials have sparked controversy in the legal profession, pitting prosecutors against defence lawyers. The Criminal Justice Act 2003, which made them possible, was introduced amid concerns over jury nobbling. David Blunkett, who was Home Secretary, said that in London alone £9 million was being spent every year on surveillance of jurors. People who tried to intimidate jurors did so for one reason, he said — “because they think that those in front of the judge and jury will be convicted”.

So the Act allows for trial without jury if there is “evidence of a real and present danger” of tampering. The growth of organised crime has made interference with juries an increasingly serious threat to justice.

But judge-alone trials highlight the need to balance the aims of bringing criminals to book and ensuring a defendant’s right to a fair trial. The principle of trial by one’s peers has long been eroded but for serious criminal charges it remains a bastion of the English system — as it is in all common law countries, such as the US and Australia. Elsewhere it is rarer: Germany abolished it in 1924; and in France it is available only for crimes carrying at least ten years in jail.

Now, with yesterday’s guilty verdicts, lawyers voiced fears that judge-only trial would become a template. The so-called Diplock courts, the only UK precedent for such trials, were introduced in 1973 for terrorism trials in Northern Ireland and still exist.

Peter Binning, a fraud specialist at the solicitors Corker Binning, said: “There is now an irresistible temptation for prosecutors with difficult cases to argue that jury trial is too expensive. Once judge-alone trials become more established in England and Wales . . . there will be a greater risk of wider legislation to abolish jury trial in certain cases — often those such as fraud and terror trials, where juries are most needed.”

Joseph Wright, a solicitor at Hodge Jones & Allen LLP, said: “It is hard not to see this as the thin end of the wedge.

“The absence of a jury in a criminal trial goes beyond cases of alleged and potential jury tampering and extends to serious or complex fraud cases. Following the 2004 Domestic Violence, Crime and Victims Act some counts may be tried by a jury, and others in the same trial by a judge alone.” Of most concern, he said, was that evidence of alleged jury nobbling in the Heathrow trials appeared to have been withheld from the defence and the judge on grounds of sensitivity.

Defence lawyers have unsuccessfully challenged the “public interest immunity” provisions that kept the material under wraps and newspapers are planning a fresh challenge.

Mr Binning said that the cost of losing jury trials would be that “public confidence in the criminal justice system, supported through participation in the common law jury system, will be irreparably eroded”.