The Secretary of State for Justice recently confirmed that the government is considering whether to introduce primary legislation to suspend jury trials for offences triable either way as a way to address the backlog of criminal cases arising from the public health crisis. This development has caused alarm amongst practitioners who might be hoping that Humphreys J was right when he said: “I cannot bring myself to believe that there are any persons other than the inmates of a lunatic asylum who would vote in favour of the abolition of trial by jury in serious criminal cases” (Do We Need a Jury? [1954] Crim LR 457).

Public confidence in the jury system is high and public participation in the criminal justice system is considered a bastion of British civil life. As Lord Devlin famously said, “each jury is a little Parliament… it is the lamp that shows that freedom lives” (Trial by Jury, The Hamlyn Lectures, 8th Series (1956) at p.164). Nonetheless, the build-up of criminal cases – the long-term causes of which pre-date the pandemic – must be addressed urgently unless defendants are to be detained in custody or subjected to stringent bail conditions without trial for unacceptably long periods.

An alternative approach to the suspension of jury trial for either way offences, which respects the importance of the institution of the jury and the interests of defendants while increasing the capacity of the courts, might be to grant defendants a right to opt-out of jury trial in cases sent to the Crown Court, otherwise known as ‘jury waiver’.

The introduction of such a right has been raised previously in England and Wales. In September 2001, Sir Robin Auld published his comprehensive “Review of the Criminal Courts of England and Wales” in which he recommended “that defendants, with the consent of the court, after hearing representations from both sides, should be able to opt for trial by judge alone in all cases now tried on indictment…” Significantly, the recommendation was welcomed by civil libertarians and influential law reform organisations such as JUSTICE.

The recommendation formed the basis of Clause 36 of Part 7 of the Criminal Justice Bill 2002-2003. Clause 36(3) stated that a defendant’s application for trial by judge alone must be granted unless either (i) two or more defendants are to be tried and one of them opposes the application; or (ii) the judge is satisfied that “exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.”

The Select Committee on Home Affairs could “not see why a defendant… should not have the option to waive his right to a jury trial, subject to the conditions specified…the proposal offers the potential for a quicker and cheaper form of trial without affecting adversely the defendant’s interests.” Conversely, the clause attracted criticism from many Parliamentarians, including Vera Baird QC MP, who said it “…may result in the end of jury trial as we know it.” On 19 November 2003, the House of Lords rejected the clause and it was abandoned.

Jury waiver is not an alien concept in the Commonwealth or other jurisdictions. In New Zealand, the right to jury trial is guaranteed and, other than in cases where the maximum sentence is 14 years’ imprisonment or more, the defendant has a right to elect trial by judge alone. In more serious cases, the judge may overrule the defendant’s right to jury waiver if the ‘interests of justice’ demand that the case should be tried by a jury. The rationale behind this limitation is that, in the most serious criminal cases, jury trial is considered “for the benefit of the community as a whole as well as for the benefit of the individual accused” (Brown v R (1986) 160 CLR 171.). The New Zealand courts “… generally assume that, on advice, the accused is the best judge of the interests of justice so far as he is concerned…” (R v Narain [1988] 1 NZLR 580).

In Canada, a defendant has a right to jury trial and the right to waiver, but, in the most serious criminal cases, the Attorney General’s consent is required. The Canadian Supreme Court took the view that to deny jury waiver would be “to elevate the interests of society over the interests of the individual” (R v Turpin (1989) 48 CCC (3d) 8 (SCC)). Some Australian States also permit jury waiver in trials on indictment.

The United States Constitution guarantees the right to jury trial where the maximum sentence is more than six months’ imprisonment, but the Supreme Court has endorsed the practice of jury waiver with the consent of the prosecution and the court (Patton v United States 281 US 276 (1930)). Significantly, the Supreme Court noted that defendants could waive other rights – such as the rights to free legal advice and to remain silent – and were “unable to find… any convincing ground for holding that waiver is effective in misdemeanor cases, but not effective in the cases of felonies.” The consent of the prosecution and the court is mandatory as “the maintenance of the jury as a fact finding body in criminal cases is of such importance…

In 1973, in response to the dangers of partisan jurors and jury tampering, the Diplock court system was established in Northern Ireland. ‘Scheduled Offences’ were automatically tried by a judge sitting alone. The judge was obliged to provide a fully reasoned verdict and the courts retained the ordinary procedure and practice of jury trials. The Diplock courts heard not only terrorism cases, but also about a third of serious criminal offences. In 1990, the independent reviewer of the emergency legislation “…observed that there was little demand on grounds of performance for an end to the system…” In considering the replacement arrangements, Lord Carlile of Berriew QC commented that “…there is a general and justified agreement that the quality of judgment in the Diplock courts is very high.

The experience of other jurisdictions demonstrates that a system of jury waiver can be practicable and effective, without having to change the rules of evidence. The acceptance of the Diplock court system in Northern Ireland, for nearly forty years, demonstrates that a professional judiciary is capable of undertaking the task of trying serious criminal cases whilst retaining public confidence.

The potential benefits of jury waiver extend beyond the administration of justice to individual defendants.

I give it to those who choose to have it, in cases in which they choose to have it and not unless they insist upon having it…” Jeremy Bentham

As Josef K remarked to the Magistrate in Franz Kafka’s The Trial, “…it is only a trial if I recognize it as such.” The confidence of defendants in the trial system cannot be overstated. There have been a plethora of recent examples of juror impropriety – from looking cases up on the internet to skipping the trial to attend the theatre – which may incline a defendant to prefer trial by some other means. Other reasons that a defendant may prefer an alternative tribunal of fact include the following:

  • In factually or legally complex cases, a defendant may take the view that a judge will understand their case more easily than a juror.
  • In lengthy cases – in which there are concerns about the diversity of juries – a defendant may prefer their trial to be resolved more swiftly.
  • In cases with ‘technical’ defences, a defendant may wish a verdict to be accompanied by appealable reasoning or a defendant may, in any event, want a fully reasoned decision. It is significant in this regard that in Taxquet v Belgium (2009) (App no.926/05) the European Court of Human Rights was critical of a Belgian jury’s “laconic answers to vague and general questions” that deprived the applicant of a reasoned verdict.
  • In cases where the offence attracts public opprobrium, a defendant may hope for a more objective consideration of his case by a judge and lay assessors. Clarence Darrow memorably advised Leopold and Leob (the notorious child murderers, who committed the so-called “crime of the century” in 1924) to plead guilty to avoid a jury death sentence and to be sentenced instead by a judge.
  • In order to avoid the risk of injustice created by adverse publicity: see R v Abu Hamza [2006] EWCA Crim 2918.
  • In cases which turn on confession or identification evidence, a defendant may consider that judges tend to be more rigorous in the rejection of such evidence.

Why, then, did Parliament reject the proposal in 2003?

On 18 November 2003, during the House of Commons’ debate, Vera Baird QC MP (and future Solicitor General) expressed concern that “the new right…will inevitably be abused… there will be forum shopping by defendants of the worst imaginable kind.” She further suggested that jury waiver was a “slippery slope” to judges deciding mode of trial. This, she said, would to be “a nail in the coffin of the right to jury trial” as judges alone will be “quicker, slicker, more efficient and cheaper.”

In this context, the consequentialist argument is unconvincing. The vast majority of criminal cases are already resolved without a jury. Jury waiver is of an altogether different nature to other proposals which have attracted the criticism that they would undermine trial by jury. On one view, jury waiver would crystallise a ‘right’ to jury trial as defendants would have a meaningful choice as to their tribunal. As it stands, save perhaps, for offences triable either way, the notion of an absolute ‘right’ to jury trial in criminal proceedings is arguably misconceived: for indictable only offences – for which there is no choice but to have a jury trial – the language of compulsion is more appropriate than that of rights.

The “forum shopping” objection can be considered in two parts: defendants should not have full control over the mode of trial; and defendants should not be able to select a “soft” judge. In relation to the first objection, it should not be forgotten that defendants have a right in either way cases to decide the forum in which their cases will be heard. In relation to the second argument, in summary cases, defendants cannot select which District Judge determines their criminal charge (or even whether the tribunal is a judge or lay Bench). In any event, this potential flaw could be overcome by a requirement that the defendant request trial by judge alone at a designated time, for example, at the PTPH.

In other jurisdictions, as here, it is recognised that the adjudication of serious criminal offences is a matter of public interest. To address this, as in New Zealand and Canada, a defendant could be obliged to seek the permission of the court, which would have regard to the broader interests of justice, before any waiver became effective.

In 2003, it was suggested by the Bar Council that “juries protect judges from the suggestion of bias. If judges are to become fact-finders in very serious cases, then there is a substantial danger they will be subjected to undesirable close scrutiny by the media, which will pressurise and distort their judgment over time.” This argument underestimates the powers and responsibilities of trial judges in criminal cases, for example, to decide the admissibility of evidence and to withdraw a case from a jury. In addition, it suggests that District Judges in the Magistrates’ Court (presumably along with judges in the civil and appellate courts) are incapable of handling media criticism without the distortion of their judgment. As the Select Committee on Home Affairs noted, “we do not accept that the potential for media criticism of the judiciary will be any greater than it is already.”

In the final analysis, it might be thought that to “imprison a man in his privileges” is to undermine the privilege itself (Adams v United States ex rel. McCann 317 U.S.259 (1942), at p.280). The drawbacks of a right to jury waiver might be properly characterised as practical considerations, which could be addressed in the operation of any such scheme, whereas the arguments for a right to jury waiver in all indictable cases are persuasive. Before drastic measures are taken to curtail the right to jury trial, perhaps consideration should be given to the introduction of a right to jury waiver in cases sent to the Crown Court for trial.