Sir Richard Henriques, a vastly experienced criminal silk and former High Court judge, has proposed clearing the backlog – already dismaying by 30 December 2019 – accumulating due to the suspension of jury trial under the Coronavirus Act 2020, by temporarily resorting to trials by judge alone (‘Judge-Only Trials Would Let Courts Get Back to Work’, The Times, 1 May 2020). If this were to be mandatory then I would be first in line of adamant opponents. But the immediate opposition of many barristers has, I suggest, been perhaps unreflective, and demeaning to the systems of judge-alone trials, on the election of the defence, which have been operating entirely uncontroversially for many decades in Canada, New Zealand and some Australian states. As a Canadian and English barrister (Alberta call 1983) I explain here how defence election in Canada serves to expand, not contract, defence rights.
First, some essential points about Canada’s robust criminal justice system:
- Defence rights and judicial independence (Valente v The Queen  2 SCR 673) are guaranteed by the Canadian Charter of Rights (1982).
- Criminal law, procedure and rules of evidence generally fall within federal jurisdiction; the Criminal Code of Canada (CCC, first enacted 1898) applies uniformly across the 10 Provinces and three Territories.
- Provincial Legislatures can enact summary conviction offences, usually attracting maximum sentences of under two years’ imprisonment.
- The Charter of Rights s 11(f) guarantees the right to trial by jury for any offence (other than under military law) with a minimum imprisonment of five years (regrettably, higher than here), but does not impose jury trial on defendants.
- All judges, including the equivalent of our magistrates, are professionally qualified and were experienced practitioners prior to their appointment through rigorous independent judicial appointments processes.
- The jury of 12 must return a unanimous verdict; a hung jury results in a retrial.
Rights before trial
An accused will be put to election on first appearance, and counsel’s usual practice is to elect trial by jury so as to preserve that right (CCC s 536); if no election is made then or later, the default is jury trial (CCC s 471). However, the accused any time up to the first day of trial can re-elect trial by the equivalent of our High Court/Crown court judge or district judge, sitting alone (depending on the gravity of the charge) (CCC s 561).
The right of election now applies even to murder and treason cases (CCC s 469). Until 1985, for historical reasons, only Alberta had defence election for those charges, but after an unsuccessful constitutional challenge in Ontario – so important was the defence right perceived – Parliament extended the right to those charges, across Canada. Judge-alone election for these offences is subject to the Attorney-General’s consent (CCC s 473) but this is very rarely withheld.
As here, the Crown can control access to jury trial by choosing to charge a ‘hybrid’ (our ‘either-way’) offence as a summary charge, capping the top end of the potential sentence at two years less a day. That prosecution decision diverts the case from a preliminary inquiry directly to summary trial.
Otherwise, if the offence is punishable by 14 years of imprisonment or more, the defence can test disclosure and the prosecution case, including viva voce witnesses, in a preliminary inquiry before a Provincial Court judge, who will determine whether there is a sufficient case for the accused to stand trial (CCC Part XVIII).
Also as here, the Canadian Parliament has increasingly legislated for hybrid rather than indictable-only offences. These include ABH and sexual assault (sexual assault causing bodily harm or with a weapon, and aggravated sexual assault, being indictable and triable by jury; rape was abolished as a named offence in the early 1980s to avoid the complainant having to testify about penetration).
Unlike here, the Canadian view is that miscarriages of justice can arise from wrongful acquittals as well as wrongful convictions. The Crown has an almost equivalent right of appeal as the defence from alleged errors of law by trial judges; this has proved useful in correcting judges with defence-favouring outmoded opinions, eg about sexual behaviour evidence, or credibility of child witnesses.
The Court of Appeal can quash a jury acquittal but then must order a retrial (CCC s 686(4)(b)(ii)).
A distinct difference between the English and Canadian Courts of Appeal is that there is no convention of unanimous judgments in criminal cases. Indeed an appeal lies as of right to the Supreme Court of Canada where a judge of a provincial Court of Appeal dissents on a point of law, or the CA has quashed a judge’s acquittal and entered a conviction (the SCC can grant leave to appeal in other cases). The SCC thus has great expertise in criminal adjudication.
Why do the defence choose judge-alone trials?
Let’s face it: jury verdicts are inscrutable. Judge-alone trials offer expanded appeal rights in practical terms, as trial judgments can be mined not only for errors in admitting or excluding evidence and where judges have misdirected themselves on the law, but also for errors in understanding, or drawing inferences from, complex evidence.
Cases where defence counsel may prefer seasoned triers of fact include where:
- there has been inflammatory or prejudicial pre-trial publicity (social media realistically making changing trial venues futile); one example is the trial of the celebrity CBC talk-show host Jian Ghomeshi on ‘rough sex’ charges, where even mainstream national media assumed guilt; he was comprehensively acquitted by the trial judge who took exceptional pains to explain to the public the presumption of innocence, similar fact evidence, previous inconsistent statements, and collusion, and his reasoning on credibility (R v Ghomeshi 2016 ONCJ 155);
- the defence requires detailed analysis of complex forensic or other highly technical evidence, the bulk of which favours the prosecution – and which risks dazzling a jury;
- the defendant’s unsavoury past or criminal record, or similar fact evidence, probably will be admitted;
- the case involves serious child abuse or where jurors would be required to view indecent photographs of children.
I have been unable to locate any reliable publicly available statistics on conviction rates which disaggregate jury verdicts and judge-alone verdicts (I’m eager for funding here!). This might well not be a realistic exercise because cases tried on indictment are (as here) likely to be the most thoroughly investigated and prepared by police and prosecution.
In the UK, the ‘right’ to trial by jury is foisted on defendants even when, objectively, that right may not be to their benefit. In Canada, New Zealand and several Australian states, the right is viewed, as with other fundamental rights like the right to silence, one which the defence after consideration might decide not to exercise. Whilst the right to liberty is self-evidently crucial, other essential interests, like not having one’s child taken away by the state, are confided daily to professional triers of fact in our civil courts. Case-hardened magistrates already imprison defendants for up to six months.
This option for the defence to exercise, as one of several ways of restarting trials in the COVID-19 crisis, should not be immediately discarded by the criminal Bar as inevitably inimical to the interests of justice. For the Lord Chief Justice’s ‘blue skies’, look to Canada.
Laura Hoyano is a tenant at Red Lion Chambers (London) and Associate Professor of Law at Oxford University. She was called to the Alberta Bar in 1983. Part of her barrister's training there was carried out as a law clerk to the equivalent of High Court Justices, and to the Alberta Court of Appeal. She assisted judges with murder and other serious cases, tried both by juries and by judges sitting alone, and on appeals therefrom. This provided her with an unusual and valuable perspective in comparing how counsel and judges approached the two modes of trial, and the different forms of appeals they could generate.