UK & Europe
Currently, with a few exceptions, jury trials and hearings in the UK are being postponed or not starting at all. As such, the criminal justice system has effectively ground to a halt. It is therefore worth considering whether now is the time to move to a different model more able to contend with the current or future pandemics and clear the existing backlog of over 30,000 cases before the courts. One possible model is Germany, which is already making headlines for its robust response to the current pandemic.
Pre-COVID-19, German courts proved their ability to deal with complex cases such as the cum-ex dividend trials in relatively short periods of time. Recently, a Regional Court in Bonn (equivalent to a UK Crown Court) took 40 days of hearings to arrive at a guilty verdict in a cum-ex trial dealing with very complex tax issues. Indeed, on average, a trial before a German Regional Court requires only a mere 4.7 days.
The German criminal justice system is assisted by not having ponderous jury trials. Instead judges can digest papers according to § 249 (2) StPO (German Code of Criminal Procedure) which would normally take days to present to a jury and which, in the UK, can only be trusted in the main to absorb the evidence orally. In the above-mentioned cum-ex dividend trial, much of the written evidence, which amounted to thousands of pages, was introduced pursuant to §249 (2) StPO into the proceedings. In Germany, courts are also allowed to stagger hearings over a number of days without having to convene on successive days. The ability to list part-heard eliminates many issues with having to schedule trials in a single block of time.
Trial participants are trusted to be able to spend time away from the trial and to be able to pick up the matter at a later date. The average time per trial is therefore considerably less in Germany and listing is less of a problem than in the UK, where courtrooms pre-COVID-19 were sitting empty due to a lack of availability of time slots and with a large backlog.
German trials also seek an immediate decision and cannot result in discharged or hung juries which are a large burden on resources and lead to inhuman experiences for defendants who have to be tried twice. Nonetheless, recent proposals in Scotland for disposing of jury trials due to the pandemic were dropped due to considerable resistance to change. As COVID-19 will be around for a considerable time and its effects felt for years to come, it is not clear how the criminal justice system is supposed to cope if jury trials are retained.
A closer look at court case management tools in Germany may provide further food for thought.
In the UK, due to the separation of judge and jury, the judge is not allowed to give a clear indication of how they view the case. In Germany, however, the instrument of “Rechtsgespräche”, or “legal discussions”, can be held pre-trial as well as at any point in time during the trial to allow the court to have non-binding discussions with the prosecution and defence and indicate how they view the case. This often helps focus the trial and get parties to move away from entrenched positions.
This also assists with plea bargaining, although in Germany the traditionally casual open dialogue between judges and advocates outside of the courtroom led to criticism especially regarding the so called “Sanktionsschere”. This is literally translated as the “sentencing scissor” where the defendant would receive an indication of an extremely low sentence in the event of admission for liability whereas the sentence would be disproportionally more severe if he disputed the charges. Such an approach led to verdicts being overturned by appellate courts as the right to dispute allegations is fundamental and, unsurprisingly, cannot be seen as an aggravating factor. As a result, the system of plea bargaining has now been formalised by statute requiring all negotiations before or during trial to be documented in the minutes of the trial.
If judges were able to give an earlier indication, the prosecution might throw in the towel in much sooner and allow the case to be disposed of after a few witnesses. The mechanism of getting cases thrown out at half-time in the UK sets too low a bar as the prosecution is only required to show that a prima facie case exists.
The legal institute of §153a StPO allows a type of personal Deferred Prosecution Agreement where proceedings against individuals can be disposed of following payment of a sum of money usually to charity and normally calculated with reference to income as in the Bernie Ecclestone and Josef Ackermann proceedings. Moreover, the provision can be applied by the prosecution in the pre-trial phase with the courts approval and without requiring a single court hearing. Such case-management tools are not available to judges in the UK.
Concerns remain whether juries actually understand the cases presented to them. In 2010, a Ministry of Justice study found only a minority of jurors in a case exercise fully understood the directions in terms used by the judge (Are Juries Fair? by Professor Cheryl Thomas). Juries are not required to provide a reasoned decision in the UK; indeed many criminal practitioners do not believe a jury would be capable of rendering a reasoned decision, nor are the same practitioners able to put forward a system for them to do so.
Due to the perceived lack of transparency in the decision making process, jury trials in which the decision on criminal liability is separated from the decision on the sentence were dispensed with in Germany in 1924. Currently, two lay persons sit next to one professional judge in the Amtsgericht (equivalent to a UK magistrates court) and next to three professional judges in the Landgericht. Complex white-collar crime trials which are tried at the “Große Wirtschaftsstrafkammer” ("Greater Economic Crime Chamber") are heard by three professional and two lay judges who decide jointly on liability and sentence with a two-thirds majority.
Previous suggestions and legislation passed for dispensing with a jury in the UK in certain circumstances envisages a judge sitting alone. We consider this too much of a burden for one person and it would be difficult to rein in bias and ensure the right amount of industry expertise. The correct amount of expertise appears questionable in both systems especially in complex white collar cases. Although the Große Wirtschaftsstrafkammer is widely viewed as generally having a good understanding of financial crime cases, the use of industry experts would further assist. So far, the laypersons who act as judges are not required to have specialist financial knowledge and it is often reported they do not contribute to the trial at all and merely rubberstamp the decisions of the professional judges.
The most reasonable balance in cases involving complex financial markets or fraud cases, which are the largest drain on criminal legal aid and the criminal justice system, appears to be by having a presiding lawyer flanked by two industry experts. This would be comparable to the FCA's Regulatory Decisions Committee which has operated effectively with three panel experts, the Upper Tribunal in FCA referrals which has a presiding judge and two wingers who are often lay members expert in the subject matter, and the Takeover Panel Hearings Committee which convenes with a panel of seven made up of a combination of highly experienced lawyers and industry experts.
As the dishonesty test in the UK is now the same in civil, regulatory and criminal proceedings following the Ivey v Genting Casinos  UKSC 67 Supreme Court decision, it is clear that criminal courts and regulatory tribunals are often tasked with getting to grips with the same subject matter. Applying the same test, the FCA can find a person dishonest, ban them from the industry and publish that the person was dishonest, with such decisions making the front pages of the press. These actions have far reaching implications for the individual.
Arbitration tribunals are regularly required to decide on “bet the company” cases and also ones with serious consequences for sovereign states, often involving matters of fraud or bribery (see World Duty Free v Republic of Kenya, Arbitrator Roberts Owen Brcko Award, Yukos v Federation of Russia to name just a few). The oft-ventured argument that only criminal trials result in serious consequences and therefore necessitate a different model in order to be able to determine liability and impose custodial sentences of over one year appears for the above reasons unconvincing. It should also be noted that civil and criminal judges in the UK can already impose sentences of up to two years for contempt of court, and criminal judges can impose sentences for defaulting on confiscation orders of up to 14 years, in both cases without referring decisions on liability to a jury.
Again with reference to time-scales, during the IBOR trials the FCA´s Regulatory Decisions Committee (“RDC”) took two hearing dates to exonerate a client appearing before them whereas on the same subject matter a jury acquitted a client after two trials, lasting six months in total, with the not guilty verdict being returned in the second trial after only two hours. With regard to the RDC, most of the evidence was dealt with in submissions exchanged between the parties and exculpatory material could be adduced more easily whereas similar exculpatory evidence was excluded from the criminal trials. The hearing dates in the RDC proceedings were three months apart and much easier to schedule than in the Crown Court where the defendant had to wait seven months for a retrial.
As mentioned above, the UK regulatory justice system requires reasoned decisions to be provided by the RDC, Upper Tribunal, and the Takeover Panel. Therefore, this transparency requirement is not alien to the UK justice system as a whole but only to the jury system. The decisions of the Upper Tribunal are usually well drafted with the judgement set out in detail and easy to follow.
The logistics of digitalising jury trials currently appears challenging. The question of video trials with 12 jurors sitting in front of screens in a virtual courtroom and concentrating over an extended period of time would need to be resolved. A virtual jury trial appears to present larger logistical difficulties than having a smaller amount of participants, as in Germany.
The German criminal justice system relies on hearings in person and currently has no provision whatsoever for the use of video technology in the courtroom apart from a few regulations regarding vulnerable witnesses. Currently, most German criminal courts have come to a standstill and the use of video technology is being hotly debated in recent weeks with the outcome uncertain. As a temporary measure, to prevent pending trials from having to start all over again, all criminal courts are entitled to halt criminal trials for a period of three months.
In the UK, virtual trials would have to include, in the most complex financial crime cases,. senior and junior counsel, senior and junior instructing solicitors, a judge and clerk, witness support and it is clear that the numbers add up, all the more-so if multiple defendants are involved. The capacity of IT systems would need to increase considerably even if jury numbers were reduced to seven, as provided for by legislation during World War II. Even then, who would watch the jurors to see if they were concentrating and could they do so easily in front of screens? Would juries also be more detached if they could not see victims or defendants in person? Would they be resentful towards the defendants given they are obliged to potentially risk their and their families' lives? The jury pool itself could be significantly reduced with many jurors not able to serve as most people would have to care for children or the elderly. Key witnesses would have the same issues.
Should the pandemic come in waves, the threat of having to abandon trials will be a frequent occurrence and too disproportionate a burden on participants in the system. If juries were required to attend in person with social distancing measures, all court rooms would need to be significantly repurposed.
It is likely in the COVID-19 era that the use of video technology will need to feature prominently in both systems if they are to be pandemic resistant.
Germany lags significantly behind the UK with regard to existing court equipment. While this deficiency might be easily remedied, there is still very strong opposition from all parties involved to changes in the Code of Criminal Procedure to allow the extensive use of video technology at trial. The UK system has a head start in terms of experience with such equipment and the legal basis for its use.
As matters stand, it appears that both systems will be experiencing profound change in these unsettling times. And although no one system is perfect, it appears that especially during COVID-19, a move to a more professional-based system similar to the FCA, the Upper Tribunal or the German Criminal courts and deploying widely the use of video technology would allow the criminal justice system to restart, bringing considerable efficiencies and additional transparency and accuracy.
Otherwise, as the saying goes, justice delayed is justice denied.Authors: Charles Kuhn and Dr. Oliver Kipper, kipper+durth Rechtsanwälte This article first appeared on Law360. The original article can be found here.