Judge-only trials for complex fraud would put white-collar defendants on a separate legal track

The trade-off is in the scope ministers kept. Rowland listed fraud, tax evasion and insider dealing among the complex cases now in line for judge-only trials. She said the narrower plan "is a way of getting some of the benefits without the political difficulty of more general restrictions to jury trials." ^[6] Defendants inside that line bear the cost. Louise Hodges, a partner at Kingsley Napley, said those facing the most serious financial allegations "deserve the same right to be judged by their peers as any other defendant." ^[9] "Drawing an arbitrary line around financial crime and calling it reform is not good enough," she said. ^[10]

Rowland's summary of the Fisher review explains why the line matters. "He highlighted that fraud is about dishonesty, and that this should be rooted in the standards of ordinary people and whether someone has behaved in a dishonest way is a citizen judgement," she said. ^[4] Under the amendments, that judgement would pass to a judge whenever an offence is classed as "technical and lengthy". ^[1]

For a company with an executive under investigation, the first problem would be the classification itself. Hodges said: "The risk is that this will introduce more complexity and delays with arguments about what exactly is a 'technical and lengthy' fraud and financial offence and how to ensure that this provision will be applied consistently and fairly." ^[8]

The second problem comes after the verdict. Christine Braamskamp, London managing partner at Jenner & Block, said that when a white-collar case is heard by a judge alone, "any reasoned judgment will be read closely by regulators, investors and potentially overseas law enforcement authorities." ^[11] Defence planning for the criminal trial would have to account for the civil and regulatory aftermath from the start. "This raises the spectre of more aggressive follow on litigation in the form of civil claims, regulatory action or foreign investigations," Braamskamp said. ^[12]

Richard Cannon, a partner at Stokoe Partnership Solicitors, questioned the premise. "There is no evidence that juries are incapable of dealing with such cases in a fair and proper manner or that Judge only trials will be more efficient," he said. ^[15] The government's answer is the backlog. Courts minister Sarah Sackman said the change "allows us to start that work far earlier, ensuring that under this Government we do not have victims waiting endlessly for justice." ^[16] Justice secretary Alex Norris told the BBC the backlog would begin to fall "in this Parliament" and would drop over the next decade "as a result of the changes we're making". He did not confirm by how much. ^[17] The Ministry of Justice declined to comment to City AM. ^[14]

The amendments return with the Courts and Tribunals Bill later this month. ^[13] This quarter, a board with a live fraud inquiry has to plan for the chance that the case falls inside the judge-only class. It also has to weigh what a written finding against an executive would do to the company's position with regulators and civil claimants. Next quarter's consequence depends on the wording parliament passes. I think the classification fight Hodges describes would come first, because it has to be settled before any judge-only trial can begin. ^[8]