Foundations of the English and European Union Legal Systems - Assignment Example

Foundations of the English and European Union Legal Systems Introduction The idea of an "ancient right" to jury trial is an attractive argument, andthe present-day English jury does indeed have roots that can be traced back several centuries. But the jury has continuously adapted and evolved, and its functions have changed fundamentally over the years. Besides changes in the jury itself, wider changes to the criminal justice system have transformed the nature of the right to a jury trial. In particular, the growth of legal aid in criminal cases this century means that virtually all criminal defendants are represented by a trained lawyer, strengthening the defendant's position whilst placing an increasing burden on the public purse.1 On March 22, 2005 six men were acquitted from a fraud case costing 60 million. Considered to be one of Britain's longest and costliest fraud trials, it just collapsed after twenty-one months of court proceedings at London's Old Bailey.2 The men had been accused of conspiring to corrupt public officials and gain insider information on a 2 billion extension to London Underground's Jubilee Line.3 The jury's inability to come up with a fair verdict was pointed out to be the reason for such failure. There had been disruptions and problems with the selected jury and further allegations regarding an unfair trial rose. The verdict cause the public to not to remain in silence that caused unrest among the government. This situation led to the Attorney general to impose on the Criminal Act of 2003 regarding fraud trials that put the juries out of the scene. 4 There had been protests even when it was proposed by the Attorney General Lord Lord Goldsmith. However, the pressure to remove juries from the most difficult cases dates back to the Roskill committee on fraud trials, which recommended trial by a judge with expert lay assessors in 1986.5 Criminal Justice Act 2003-Part 7 (Trial Without a Jury) The implementation of Part 7 of the Criminal Justice Act of 2003 seemed to be the most appropriate practice in complex fraud trials as what happened in the Jubilee line trial. The Government is no longer willing to lose millions of money spent on a single trial thus a trial without a jury is an alternative. The parliament's approval on the said proposition was justifiable through certain aspects that may seem unreasonable for some conservative groups who are not able to see the real deal behind the fraud trials with a judge-only trial. Further explanations regarding this provision were explained in the Explanatory Memorandum to the Criminal Justice Act 2003 (Commencement No. 12 and Transitory Provisions) Order 005. The following are some of the details regarding its implementation. The Government considers that there are certain fraud cases where the length or complexity of the trial is likely to be so burdensome to the jury that it is in the interests of justice that the trial be conducted without a jury by a judge sitting alone. Provisions in Part 7 of the Criminal Justice Act 2003 give effect to this policy and provide for prosecution applications for certain fraud cases to be conducted without a jury. The requirement that the provisions apply only to cases where a notice has been given under section 51B of the Crime and Disorder Act 1998 limits them to cases of serious or complex fraud.6 The provisions operate only where an application is made by the prosecution, the judge is satisfied that the length or complexity of the trial is likely to make it so burdensome upon the jury that the interests of justice require a non jury trial, and the Lord Chief Justice or a judge nominated by him gives his approval.7 It is the Minister's view that the provisions in Part 7 of the Criminal Justice Act 2003 for non jury trials for certain fraud cases are compatible with Convention Rights, as Article 6 of the Convention (right to a fair trial) does not include a right to trial by jury. The Joint Committee on Human Rights commented (Second Report: Criminal Justice Bill, paragraph 5) - "We do not consider that the proposed limitations on jury trial under Part 7 raise any human rights issue, despite their politically controversial nature." 8 The trigger for an application under section 43 is that a notice is given under section 51B of the Crime and Disorder Act 1998. Such a notice can only be given if the prosecution consider the evidence of the offence charged reveals a case of fraud of such seriousness or complexity that it is appropriate that the case is immediately taken over by the Crown Court. This section is added to the 1998 Act by Schedule 3 to the Criminal Justice Act 2003, but is not yet in force. Article 3 of the draft Order provides for transitory provisions that ensure that in the meantime applications under section 43 are similarly limited to serious and complex fraud cases. The three transitory triggers set out in Article 3 are that the defendants have been sent for trial under section 51 of the 1998 Act and the evidence of the offence charged reveals a case of serious or complex fraud, or that a notice has been given under either section 4 of the Criminal Justice Act 1987 or article 3 of the Criminal Justice (Serious Fraud)(Northern Ireland) Order 1988. Notices under the latter two Acts can only be given if the prosecution consider the evidence of the offence charged reveals a case of fraud of such seriousness or complexity that it is appropriate that the case is transferred immediately to the Crown Court. However, at present in England and Wales indictable only offences are automatically transferred to the Crown Court under section 51 of the Crime and Disorder Act 1998. The first transitory trigger therefore ensures that applications under section 43 can only apply to these cases too, if they reveal a case of serious or complex fraud. Whether a case involves serious or complex fraud is also the determinant under the Criminal Justice Act 1987 of whether a case can be investigated by the Serious Fraud Office.9 Advantages and Disadvantages of Trial Without a Jury for Complex Fraud Cases Going back to the Roskill trial in 1986 that had initiated fraud trials without a jury, the verdict was favorable in such a way that justice has been laid appropriately to the verdicts. Lord Runciman's Royal Commission on Criminal Justice, which reported in 1993, was more cautious. It pointed out that no-one really knew how juries reached their verdicts because it was against the law to ask them. It recommended a change in the law to enable research to be carried out. Lord Justice Auld was quite clear, however, in his Review of the Criminal Courts in 2001. He said, in line with Roskill's favoured option, that in serious and complex frauds the nominated trial judge should have the power to direct a trial by himself and two lay members drawn from a panel established by the Lord Chancellor for the purpose, or, if the defendant so requests, by himself alone.10 The court also commented that trial judges would seldom have occasion to sever, if, when performing their difficult task, the prosecuting authorities framed indictments which had due regard to the limitations of jury trial. As a result, the prosecuting authorities have not in my experience overloaded indictments, although they are often accused of doing so. They have, however, endeavoured to reflect in the charges sufficient criminality to enable juries, on the evidence, to convict with confidence.11 In recognition of the judges' significant knowledge of the criminal cases, it is appropriate to think that they will be able to lay down the suitable verdict for the accused. We can be assured that the Jubilee trial will only be a history that each of the citizens, as well as the government has learned in the past. Jury trial had in so many times been a problem in the Crown Court. Some of these were even pointed out in the Criminal Justice Bill presented on June 2003. Lawyers had accepted the fact that they have had experiences of jurors appearing lazy, disinterested, clearly failing to understand or willfully refusing to understand the issues that were at stake. Some even agreed that there are evidences that on occasions, one or two excessively dominant jurors unduly influence the others, thereby destroying the concept of a unanimous or majority verdict. The lawyers noted also that current exemptions from service mean that juries can sometimes provide a disproportionate representation of society, with more jurors who are long-term unemployed and less from other parts of the community. The lawyers also agreed with the role of the jury, on rare occasions, to repudiate a prosecution in circumstances where a judge would have no option but to convict.12 According to the Attorney General, Lord Goldsmith, trial without a jury involving complex fraud is vital that the criminal justice system should be capable of dealing with all of those who are accused of serious wrongdoing. This has not always been the case in the most serious and complicated fraud cases. In spite of efforts to keep complex trials within reasonable bounds, some drag on for months, which poses an intolerable burden on jurors. Also, if trials collapse, they do so at the cost of many millions to the taxpayer.13 The thought of having an unfair trial under Part 7 of the Criminal Justice Act of 2003 is already an unfair judgment as to its content. Under subsection 3 of this act clearly state that there is definitely a fair enough trial although a jury may or may not be appropriate in the proceedings of the trial. (3) If an application under subsection 2 ("The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury") is made and the judge is satisfied that the condition in subsection (5) is fulfilled, he may make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application 14 The Jubilee line case of having a jury problem may at the same time be eliminated through section 44 of the said Act. The alleged disruption of the juries during the entire trial proceedings will be purged such that the prosecution will be protected from jury tampering. It at the same time recognizes the judge's capability of assessing situations in court that may affect the success of the laying of verdict with or without a jury. There is an evidence that the government trusts the power and authority of the judge's in bringing out the right verdict at the end of the trial. Subsection 3 and 4 of Section 48 addresses this concern: (3) Where a trial is conducted or continued without a jury, the court is to have all the powers, authorities and jurisdiction which the court would have had if the trial had been conducted or continued with a jury (including power to determine any question and to make any finding which would be required to be determined or made by a jury).15 (4) Except where the context otherwise requires, any reference in an enactment to a jury, the verdict of a jury or the finding of a jury is to be read, in relation to a trial conducted or continued without a jury, as a reference to the court, the verdict of the court or the finding of the court16. Conclusion The jury may be one of the most venerated institutions in the British legal system, but it is proving vulnerable to attack. Over the last century, the right to trial by jury has been steadily eroded, from the virtual abolition of jury trials in civil cases to the removal of the option of jury trial in a large number of criminal cases. Increasingly serious criminal offences are being tried before benches of lay magistrates.17 However, if cases like the Roskill and the Jubilee Line trial concerns will not be addressed, chances are the people may eventually lost its trust in the capability of the court in delivering out the proper trial proceedings in bringing out a verdict, most importantly to complex criminal cases as fraud. References and Works Cited: Barrett, David. "Goldsmith defends jury-free fraud trials move" http://news.independent.co.uk/uk/legal/article293994.ece, April 29, 2006. Clarke, Pat and Raif, Shenai. "60m fraud trial collapses after 21 months in court" http://thescotsman.scotsman.com/index.cfmid=309312005, April 29, 2006. "Control and management of heavy Fraud and other complex criminal cases transcript".http://72.14.203.104/searchq=cache:nm9RPCpPbhsJ:www.judiciary.gov.uk/docs/control_and_management_of_heavy_fraud_and_other_complex_criminal_cases_transcript.pdf+Criminal+Justice+Act+2003+fraud+trial&hl=tl&gl=ph&ct=clnk&cd=19, April 29, 2006. "Control and Management of Heavy Fraud and Other Complex Criminal Cases"http://www.dca.gov.uk/criminal/procrules_fin/contents/pd_protocol/pd_protocol.htm, April 29, 2006 Darbyshire, Penny. "The Criminal Courts Review 2001 - The Main Points"http://www.sweetandmaxwell.co.uk/academic/updates/darbyshire/criminalcourtsreview.doc, April 29, 2006. "Explanatory Memorandum to the Criminal justice Act 2003 (Commencement No. 12 and Transitory Provisions) Order 2005"http://72.14.207.104/searchq=cache:HnT8qon_VGAJ:www.opsi.gov.uk/si/si2005/draft/em/uksidem_0110735366_en.pdf+assessment+of+Criminal+Justice+Act+2003+part+7+fraud+trial&hl=en&gl=ph&ct=clnk&cd=1, April 29, 2006. "Falconer plans end to long trials"http://politics.guardian.co.uk/constitution/story/0,,1481118,00.html, April 29, 2006. "Fraud trial reversal" http://crimeupdate.net/index.phpoption=com_content&task=view&id=247&Itemid=43, April 29, 2006 "Government announces review to tackle fraud" http://www.lslo.gov.uk/pressreleases/fraud_review_and_s43.doc, April 29, 2006. "House of Lords-Fraud Bill (Report Stage)"http://www.libdems.org.uk/parliament/parliamentaryreport.htmlid=5500&navPage=parliamentary.html, April 29, 2006. "House of Lords debates" http://theyworkforyou.com/lords/id=2006-03-14b.1107.0&m=100393, April 29, 2006. "Juries to be scrapped in complex fraud trials" http://politics.guardian.co.uk/constitution/story/0,,1511636,00.html, April 29, 2006. "Jury Trials (Fraud)" http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm050621/debtext/50621-05.htm, April 29, 2006. "Legislation" http://www.cjsonline.gov.uk/the_cjs/parliament/legislation/index.html, April 29, Lloyd-Bostock, S. and Thomas C. "Decline of the 'Little Parliament': Juries and Jury Reform in England and Wales". http://www.law.duke.edu/journals/lcp/articles/lcp62dSpring1999p7.htm#H1N2, April 29, 2006. "Lords Hansard text for 22 Jun 2005 (50622-05)" http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds05/text/50622-05.htm, April 29, 2006 Naughton, Philippe. "Massive Jubilee Line fraud trial collapses". http://www.timesonline.co.uk/article/0,,2-1537264,00.html. April 29, 2006. "Part 7-Trials on Indictment Without a Jury".http://www.opsi.gov.uk/acts/acts2003/30044-- h.htm#43, April 29, 2006. "Progress Made on fraud Review - Interim Report Published"http://www.criminalsolicitor.net/GH_ShowArticle.aspHID=134, April 29, 2006. "Review of the Criminal Courts of England and Wales". http://www.criminal-courts-review.org.uk/ccr-fw.htm, April 29, 2006. "R (Bermingham and others) v Director of the Serious Fraud Office; Bermingham and others v Government of the United States and another [2006] EWHC 200 (Admin)" http://www.lawreports.co.uk/WLRD/2006/QBD/feb0.2.htm, April 29, 2006. Rozenes, M. "Lessons for the criminal justice system" http://www.cdpp.gov.au/Media/Speeches/19960308mr.aspx, April 29, 2006. Rozenes, M. "Who Needs a Fair trial" http://www.cdpp.gov.au/Media/Speeches/19961009mr.aspx, April 29, 2006 Sahota, Roger "The Criminal Justice Act 2003A summary of changes to Bail and PACE"http://72.14.207.104/searchq=cache:nHhpFe9J9QMJ:www.bsblaw.co.uk/bsbwebsitepix/Criminal%2520Justice%2520Act%25202003.pdf+assessment+of+Criminal+Justice+Act+2003+part+7+fraud+trial&hl=en&gl=ph&ct=clnk&cd=12, April 29, 2006. "Section 2 - Mode of Trial Guidelines" http://www.jsboard.co.uk/magistrates/adult_court/04acbb_section2.doc, April 29, 2006.Staple, George. "Juries in Cases of Serious and Complex Fraud". http://www.barristermagazine.com/articles/issue25/staple.html, April 29, 2006. "Stop and Search Procedures"http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm050912/text/50912w99.htm, April 29, 2006. "Transfer for trial of serious fraud cases or cases involving children" http://www.dca.gov.uk/criminal/procrules_fin/contents/rules/part_11.htm, April 29, 2006. Read More