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05 Mar 2014

Peter Binning mentioned in The Guardian- ‘Lord chief justice helps politicians grasp courts’ ‘hot potato”

Radical reforms to the justice system of England and Wales have been demanded by the lord chief justice, Lord Thomas of Cwmgiedd, who suggested a more inquisitorial procedure in civil cases, an end to juries in fraud trials, and a downgrading of some criminal trials away from the crown court to a district judge sitting with two magistrates.

Addressing the law reform and human rights group Justice in a speech on Monday night, Thomas discussed law reform in what he called “an age of retrenchment” and said the justice system would have to cope with cuts in the order of at least a third in real terms of the 2010 expenditure, and not the 2 or 3% of the past years.

Thomas said the system could not be allowed to break and that the rule of law must be upheld at a cost that the state and litigants could meet. “We can only do that by radically examining how we recast the justice system so that it is equally, if not more, efficient and able to carry out its constitutional function,” he said. He hoped that the human rights group would assist by making reasoned recommendations.

Thomas’s remarks are likely to be welcomed by the justice secretary. Announcing cuts in criminal legal aid last week, Chris Grayling said he had agreed with the chief justice that Sir Brian Leveson, president of the Queen’s Bench division of the high court, would “undertake a review of criminal proceedings to identify ways to reduce and streamline them”. Thomas added that he had asked Leveson to deliver an initial report within nine months.

Thomas then made some suggestions of his own. The first was to revive a recommendation made by the Roskill inquiry in 1986 that major fraud cases should no longer be tried by juries. The government of the day chose to follow the dissenting opinion of Walter Merricks CBE, a council member of Justice who was in the audience for Thomas’s lecture.

Among the alternatives Thomas mentioned were trial by judge alone; a tribunal of a judge and two or more lay people; and trial by a judge sitting with assessors. He also drew attention to the problems of disclosure, which he thought were getting worse rather than improving.

That was confirmed by Peter Binning, a specialist fraud defence solicitor, who said afterwards that evidence considered for disclosure by prosecutors to defence lawyers now routinely included huge numbers of instant messages between traders.

Fraud trials were still far too slow and expensive, Thomas said. “Not enough prosecutions are brought, despite the re-energised Serious Fraud Office under David Green QC.” He added: “Should we not look radically again at disclosure and the mode of trial?”

Thomas insisted that he was not expressing any views of his own on these issues. He wanted to see the evidence before reaching a conclusion. Another topic which the chief justice said he had not made up his mind was the allocation of work to the different criminal courts. At the moment, cases tried by juries in the crown court include less serious allegations: “fights where the injuries are not overly severe and dishonesty where the monetary value is small”.

Thomas recalled that his fellow appeal judge Sir Robin Auld had recommended in 2001 that an intermediate court should be established between the crown court and magistrates courts to deal with the lower end of cases currently tried by juries. Cases might be decided by a full-time district judge sitting with two lay magistrates. Auld’s proposal was not taken up by ministers at the time.

But circumstances had changed, Thomas said. Magistrates now had far less work and the crown court was heavily burdened by sexual offences cases. District judges would deliver properly reasoned judgments that could be scrutinised on appeal and provide a “real safeguard”. Another suggestion he made was to create a fast-track procedure in the crown court, presumably for less serious cases.

Turning to civil claims, Thomas said: “To some, a change to a more inquisitorial procedure seems like the obvious or the only solution to the present situation we find ourselves in, with the increase in litigants-in-person and the need to secure both a fair trial for all while doing so within fixed and reducing resources.” This would mean a much greater degree of inquiry by the judge into the evidence being brought forward, although such active intervention was already typical of much pre-trial procedure.

Attempts to reduce the scope of jury trial, whether in fraud cases or more generally, have always been regarded by politicians as a hot potato. The public is strongly attached to trial by jury, even though the vast majority of criminal cases are tried by lay magistrates or, increasingly, by a district judge sitting alone. But the support of the lord chief justice, coupled with what he regards as the imperative of cutting costs, may mean that this is a reform the politicians will soon be able to grasp.

Joshua Rozenberg

A link to the article can also be found here.