Why the Leveson Review Is Significant For UK Court System

The core recommendation for dealing with fraud cases in Brian Leveson's independent review into criminal courts, published on July 9, is that serious and complex fraud cases should be tried by judge alone^.[1]

Eligible cases should be defined by their hidden dishonesty or complexity that is outside the understanding of the general public.

The review has been billed as a once-in-a-lifetime opportunity to reform the court system, with 45 recommendations being presented to Lord Chancellor Shabana Mahmood.

The pros and cons of many of the recommendations are rehearsed and, where possible, empirical evidence is provided in support. However, significant areas of debate, dispute and discussion remain.

Official statistics confirm that the open caseload for the crown court reached a peak of 76,957 in the first quarter this year, with 30,083 cases received. Similarly, there were 310,304 open cases in the magistrates' courts^.[2] Trials are listed for 2029.

Leveson pulls no punches when describing the foundations of the problems faced, including:

• Decades of constraints and reductions in funding and investment, fewer and less experienced people, a crumbling court estate, and a lack of interagency coordination;
• Increasing complexity of criminal law, including procedures designed to improve fairness and delivery of justice; and
• An increase in volume and type of evidence, with the amount of data and devices particularly relevant for serious and complex fraud.

Leveson is in an invidious position of trying to find capacity in an overstretched and under-resourced criminal justice system that has suffered decades of cuts.

Even with the crown court sitting at a historically high level, this would not be enough to make "meaningful progress on reducing the outstanding caseload and bring down waiting times," as Leveson says. He concludes that bold thinking is required.

For many, the more controversial recommendations relate to the restriction or removal of trial by jury, including that all serious and complex fraud cases should be tried by a judge alone. A period of debate and lobbying is likely to ensue, while the government considers the recommendations.

A question is whether the jury system is core to the problem of the backlog, so that limiting it will be the promised panacea. Or are other issues more significant to easing pressure on the system? Some may challenge the potential upheaval of such a fundamental move, removing what many see as a core feature in the criminal justice system.

As to what offenses would be covered by the proposal, Leveson acknowledges that the term "serious and complex fraud" is a not a term of art. He is confident a definition can be found.

An indicative list of offenses in scope of judge-only trials is set out, including money laundering, fraud, cheating the public revenue, conspiracy to defraud, insider trading and bribery — all of which may or may not contain "hidden dishonesty or complexity that is outside the understanding of the general public."

Background

Commentators have highlighted the irony that the right to a jury trial is up for debate this year — a year marking the 800th anniversary of the reissue of the Magna Carta.

In the review, Leveson argues that the right is the right to a fair trial, rather than to a jury trial. The proposals for defendants in the crown court to elect to be tried by judge alone, subject to the trial judge's consent, could be well-supported, as this is an informed decision made by the defendant, following legal advice.

However, the blanket removal of jury trials for categories of offenses, including serious and complex fraud cases, will be a step too far for many.

Two models are proposed for dealing with cases of serious and complex fraud:

• Model 1: a crown court judge sitting with two qualified lay assessors; and
• Model 2: trial by judge alone.

It is the latter that Leveson favours, although the report also references Model 1, in particular when dealing with concerns about the representation and diversity of the tribunal.

These proposals are not new. The suitability of jury trial for serious and complex fraud has been debated for the last 40 years — including the 1983 Roskill Report, which resulted in the setting up of the Serious Fraud Office, and the 2001 Auld Review, which led to Section 43 of the Criminal Justice Act 2003, under which an application could be made by the prosecution for the trial to be conducted without a jury.^[3] The legislation was enacted, but not implemented.

Advocates for trial by jury argue that it is the right to be judged by your peers in the criminal courts that is fundamental to the system. They would dispute Leveson's assertion that either Model 1 or 2 would satisfy the expectation of providing a judgment of one's peers.

The Auld Review outlined key arguments for and against jury trials in serious and complex frauds.

Arguments for retaining jury trials include: fairness due to the randomness of the panel; jurors are best equipped to determine; and that through simplifying the case for a jury, it is also accessible for the public. Arguments against include: a fraud defendant's jurors would need to have a similar level of commercial experience related to the crime to be a peer; jurors may not understand the complexities of a trial; and, due to the time commitment required, jurors are likely to come from a less representative cohort of the community.

In relation to peers, the role of the jury is fundamental to both the actual and perceived fairness of proceedings, and the independence of decisions around convictions.

Leveson notes the risk that potential reforms could generate disproportionate outcomes for different court users, e.g., from different communities or demographic groups. This in turn, he argues, could fuel existing distrust in the criminal justice system.

The David Lammy Review in 2017 found that while those from minority communities were disproportionately likely to be charged, tried and punished, rigorous analysis showed that, on average, juries — including all-white juries — do not deliver different results for minority and white defendants.^[4]

Yet, Leveson asserts that a judge-only trial produces far less a risk of prejudice or bias in decision-making from the outset.

Leveson acknowledges that there is no reliable empirical evidence that juries have not been able to comprehend serious and complex fraud cases, although it is difficult to provide meaningful evidence because the current system does not allow jury research with sitting jurors.

Anecdotally, practitioners note that jury questions asked during deliberations generally cut to the heart of the case, see through any bluster, and demonstrate a good understanding of the core issues.

Research conducted after the conclusion of R v. Rayment and Ors, known as the Jubilee Line corruption trial, which ran for over a year, found that all "the jurors were adamant that the jury had a very good understanding of the evidence, some commenting that it was not all that difficult."^[5]

Under the current system, juries are the arbiter of dishonesty and, since 2017, the simplified dishonesty test asks whether the defendant's conduct was dishonest by the standards of ordinary decent people.

Many would argue that this question is far better answered by a jury than a judge alone. The Crown Prosecution Service submission to the review expressed the view that a jury, as peers of the defendant, brings a clear assessment of concepts such as dishonesty and intention.^[6]

Interestingly, as the recent overturning of convictions concerning the London interbank offered rate, commonly known as Libor, demonstrates, judges can misdirect juries as to the question of dishonesty — an error that was reviewed and upheld several times before judge-only tribunals before the Supreme Court, the highest court in the land, quashed the convictions.^[7]

Case management of fraud trials has been reviewed over recent years, and the fraud protocol seeks to keep trial length manageable, making the prosecution responsible for justifying any trial length of more than eight weeks and encouraging the judge to consider steps to manage trial length.

Often the prosecution underestimates the length of trial, leading to issues of trial management. A core driver to good case management is the need to explain complex concepts to the jury and manage the case within reasonable time estimates.

When done well, good case management requires parties to be disciplined in how they present their case, including charging appropriately, identifying key issues, streamlining the number of documents and witnesses, and providing realistic time frames.

Making the issues accessible for a jury also makes them accessible for the defendants and the public. An unintended consequence of taking away this discipline could create a more unwieldy process, thereby not reducing time or resources.

The review notes that annual average hearing times have increased in fraud trials, while remaining static across all trials. However, many factors that have an impact on the length of trials will remain whether or not there is a jury, most obviously the exponential increase in data. There are separate recommendations following Part 1 of this year's Independent Review of Disclosure and Fraud Offences by Jonathan Fisher KC to deal with disclosure.^[8]

Advances made in the fairness and quality of justice have led to increased complexity of criminal procedure, which takes time to explain to the jury and so prolongs a jury trial. However, whether this is sufficient reason to abandon the jury system is a moot point. Currently, there are moves by the SFO to incentivize whistleblowers, which will only add to the complexity.

Without a jury there will be additional pressures on judicial time, as judges, unlike the jury, will need to produce a reasoned judgment. Although Leveson is confident that this will not be onerous, practitioners know that it can take judges some time to produce written judgments, even after relatively short legal argument.

It may be that a tightening of case management would be a more effective tool to free up capacity in the system. Examples include a robust approach to the number of defendants and charges, time limits on the presentation of some evidence — in particular expert evidence — time restrictions on speeches, a reduction in the number of issues under dispute, and proactive management of disclosure.

Practitioners need to get involved in the discussion now — the review provides detailed grounds for each recommendation, giving everyone a head start. Leveson's review has provided a series of recommendations to the lord chancellor, and there is an anticipation that there is an appetite for radical reform.

However, reform should focus on achieving the balance between proportionate use of scarce resources, increased investment, and ensuring the right to a fair trial and public confidence in such.

As a practical matter, replacing jury trials either by a judge alone or one sitting with two magistrates will involve a rethink of how cases are presented and strategies deployed.

It is difficult to know where magistrates' resources will come from, in particular as other recommendations in the review will increase the work of magistrates courts.

The recent SFO guidance on corporate cooperation has increased the eligibility of corporates for deferred prosecution agreements, which diverts cases away from the courts.^[9]

Where a deferred prosecution agreement is not sought, it may be that companies are content to elect trial by judge alone, as the procedure will be similar to a civil process and more familiar. Individual members of the board, senior managers or others who are regarded as the individual perpetrators of the fraud are likely to want the option for a jury trial to be preserved.

This article was first published in Law 360 in August 2025.

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