The increasing length and complexity of some jury trials has been the subject of a number of reviews in Ireland and in other jurisdictions. The earliest such reviews tended to focus on difficulties that had arisen in complex fraud trials, especially in corporate fraud cases, and to propose reforms of both substantive law and procedural law in order to ensure that such cases could be presented and considered in court in an effective and efficient manner. More recent reviews have examined to what extent such reforms could be applied more generally. These reviews examined a wide range of matters that are outside the scope of this project, such as reform of pre-trial procedures and the relevant substantive law, and in this chapter the Commission confines its analysis to the issues that affect jury service.
One of the first such reviews in a common law jurisdiction was the 1986 English Report of the Fraud Trials Committee554 (the Roskill Committee) which examined to what extent reform of the substantive and procedural law on fraud could improve the fairness of fraud trials. This arose against the background of the collapse of lengthy fraud trials, especially those concerning complex corporate fraud. The Roskill Committee concluded that provision should be made for the trial of complex fraud cases other than with a conventional jury of 12 persons. It recommended that consideration be given to all or any of the following: special juries that would comprise specialist experts such as accountants; a single judge sitting with a jury to assist on key issues; a judge or panel of judges sitting with expert assessors; or a fraud tribunal. In 1998, the English Home Office issued a consultation document555 which also suggested that these options be considered.
In 2001, the Auld Report reviewed this matter again and noted that there are strong arguments to be made both for and against use of the current jury system to try complex fraud cases.556 The arguments in favour include the following: defendants have a general right to a jury trial; the random selection of juries ensure their fairness and independence; juries are best equipped to assess the reliability and credibility of witnesses; there is no evidence to suggest that jurors are not able to tolerate long and complex cases; and there is value in encouraging the parties to simplify the evidence for the jury’s sake. Arguments against include the following: there are obvious comprehension difficulties in complex cases; the length of such trials is an unreasonable imposition on jurors; and juries on these cases are more likely to be unrepresentative, as professionals will be more likely to be excused; specialist adjudicators would mean that the trial would be more expedient; a specialist tribunal or panel would give rise to greater openness, since the decision would be reasoned and appealable; and complex cases are extremely costly to the State.
Having considered these arguments, the 2001 Auld Report recommended that a court should be empowered to direct trial with a judge and jury or with a judge and lay members, and that where the defendant is deprived of jury trial against his or her wishes, there should be an option for trial by a tribunal comprised in part of persons with appropriate expertise.557 The Auld Report also recommended that it should be open for the defendant to opt for trial with a judge alone. Provision for such non-jury trials was enacted in England in section 43 of the Criminal Justice Act 2003, which provided for applications by the prosecution for certain fraud cases to be conducted without a jury. The then UK Government stated that before section 43 of the 2003 Act would be brought into force separate specific legislation would also be introduced. This was done in the form of the Fraud (Trials Without A Jury) Bill 2006, but this met with considerable parliamentary opposition in particular in the House of Lords, as well as external opposition, and it was not enacted. The Commission notes that section 43 of the 2003 Act was never brought into force and it was repealed by section 113 of the Protection of Freedoms Act 2012.558
In Ireland, the 1992 Report of the Government Advisory Committee on Fraud559was influenced by the Roskill Committee’s general approach to reform of the substantive law in this area, but it concluded that the replacement of the ordinary jury with a special jury would conflict with the requirement set out by the Supreme Court in de Burca v Attorney General560that the jury pool and jury panels be broadly representative of the community.561 in 2011 the then Director of Public Prosecutions echoed the recommendations made by the Roskill Committee and by the Auld Review that consideration be given to trying major commercial criminal cases using specially-appointed lay judges, or using jurors who had training in accountancy and finance, in place of the ordinary jury of 12 people.562
The concept that the jury pool be representative is also one of the key principles set out in Chapter 1, above. The Commission has already discussed in Chapter 7 of this Report the use of non-jury trials to address the risk of jury tampering in trials arising from organised crime as an exception to the general right to jury trial in Article 38.5 of the Constitution. This is permissible because Article 38.3.1º of the Constitution provides that non-jury special criminal courts may be established for the trial of offences in cases where it is determined that jury trial would be inadequate to secure the effective administration of justice, and the preservation of public peace and order. Since fraud trials or other comparable lengthy trials are not likely in general to give rise to the circumstances envisaged in Article 38.3.1º the Commission agrees with the analysis in the 1992 Report of the Government Advisory Committee on Fraud that, in the absence of a constitutional amendment, it would not be permissible to provide for non-jury trials in such instances.
During the Commission’s consultation with interested parties leading to the preparation of this Report, it was acknowledged that a heavy burden may arise for jurors in a lengthy trial in which they are required to understand complex evidence and to devote a large period of time to the civic duty involved in jury service in such a case. Consultees also considered, however, that the use of non-jury trial was not desirable in principle, and that the use of special juries raised questions over the impartiality of persons chosen from a specific profession or area of expertise sitting in judgement over other members of their profession. The Commission agrees that, in addition to the important issues of constitutional principle, it would be preferable to examine other possible solutions for complex or lengthy trials before giving further consideration to creating another exception to the general right in Article 38.5 of the Constitution to jury trial based on a pool that is broadly representative of the community. The Commission also notes that in the specific context of fraud trials, consultees pointed that a jury may be especially well placed to decide whether a defendant is guilty or not guilty because, even in a complex case, the question of whether a fraud has occurred may involve the exercise of judgement on the basis of the evidence presented. In Part C, the Commission turns to consider three procedural reforms that could assist in this respect: the use of more than 12 jurors for a lengthy trial, the use of assessors and the provision of documentation to juries.
The Commission recommends that, before considering the use of non-jury trials or trials by special juries in lengthy or complex trials which would involve creating another exception to the general right in Article 38.5 of the Constitution to jury trial based on a pool that is broadly representative of the community, other procedural solutions to assist jury trials in such cases should first be considered.
