Could England and Wales introduce jury-free trials? Here’s how they work in other countries

The right to trial by jury is a fundamental part of the criminal justice system in England and Wales. But under new proposals to address a record backlog of almost 77,000 Crown Court cases, some cases could now be heard by judge alone.

Sir Brian Leveson has delivered part one of his independent review of the criminal courts, making 45 recommendations to address delays in the criminal justice process. One of his recommendations is that serious offences could be tried by a judge alone without a jury. Our evidence to the review explored how judge-alone trials have been used in other countries.

Currently, a person can only be tried without a jury at Crown Court if there is a risk of jury tampering. Under Leveson’s proposal, judge-alone trials will be expanded to cases where a defendant requests to be tried without a jury, serious and complex fraud offences and where the case is likely to be lengthy or particularly complex.

To understand how this might work, we can to look to other countries where judge-alone trials are used. Australia, Canada, New Zealand and the US all permit judge-alone trials in circumstances similar to what Leveson is recommending. A defendant can choose to be tried by a judge instead of a jury in certain circumstances.

Defendants tend to express a preference for trial by judge alone if they are concerned that prejudicial media coverage or the nature of the offences might bias jurors against them. Leveson recommends that judges should decide whether a defendant’s request for a judge-alone trial should be granted, but stops short of identifying the factors that a judge should consider.

Leveson leaves open the question of whether judge-alone trials should be available for all offences, or whether certain offences should be exempt. Some countries limit which offences can be heard without a jury. For example, in the Australian Capital Territory, a defendant cannot request a trial without a jury for murder or certain sexual offences.

In New South Wales, judges are advised against permitting a judge-alone trial when the offence involves consideration of “community standards”. This recognises that members of the community have an important role to play in deciding whether a defendant has acted “reasonably”, “negligently” or “dishonestly”. For example, if a person is charged with manslaughter the jury may need to consider whether the defendant’s actions were “unreasonable”, which is best determined by members of the community.

Are judge-alone trials unfair to defendants?

Lawyers often raise concerns about judge-alone trials being unfair to defendants. Based on what we know from other countries, there is no strong evidence that this is the case. However, that is not to say that concerns about unfairness are unwarranted.

If judges convict at higher rates than juries, that might suggest that judge-alone trials are unfair. However, the best available study, conducted in New South Wales, found that judges were actually slightly less likely than juries to find a defendant guilty.

Juries do not explain their verdicts. In all countries which use judge-alone trials, judges must give reasons for their decisions. Knowing why a defendant was found guilty might make trials even more fair, providing a basis for an appeal against conviction if an error was made.

One key issue with judge-alone trials is inadmissible evidence. Ordinarily, jurors are sent out of the courtroom while the judge and lawyers make decisions about what evidence the jury is allowed to hear. Evidence might be excluded because it is irrelevant, prejudicial or was collected in breach of the defendant’s rights. In these scenarios, the jury is never made aware of the evidence.

However, in a judge-alone trial, the judge sees all the evidence, even if they decide that some of it should not be used. There is a risk that judges might be subconsciously impacted by inadmissible evidence in reaching their verdict.

Judge-alone trials also raise issues about diversity of decision-makers. In England and Wales, only 11% of judges are from an ethnic minority background compared to 18% of the population. Ideally, juries contain people from a range of backgrounds. Some defendants might feel more confident that they will be tried fairly by a jury than a judge.

Ultimately, one way to safeguard against concerns about unfairness is to give defendants the ability to choose whether or not they would like to be tried by a judge alone. Leveson’s recommendations suggest that most judge-alone trials would occur at the request of the defendant. However, judge-alone trials could be ordered against the defendant’s wishes in cases involving fraud or that are long and complex.

Juries play an important role in the legal system in England and Wales. Through jury service, members of the community contribute to the administration of justice. The inclusion of a range of viewpoints and experiences in determining criminal verdicts enhances the legitimacy of the justice system.

It is important that we continue to have juries in criminal trials. However, that is not to say that judge-alone trials cannot or should not play a role. The current backlog means that victims and defendants are having to wait years for their day in court. We desperately need to address this, and allowing defendants to elect a judge-alone trial may help to reduce delays to justice.

While judge-alone trials are not inherently unfair, any rollout in England and Wales should be closely monitored and evaluated. It is important that we do not sacrifice fairness for efficiency as we work to address the issues affecting our justice system.

The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.