Writing in Fraud Intelligence, Senior Associate James Broomhall critiques Sir Brian Leveson’s controversial proposal to review the criminal justice system in England and Wales and allow judge-only trials for serious and complex fraud cases, arguing that efficiency shouldn’t come at the cost of core democratic principles like the right to a jury trial, even in the face of practical pressures like court backlogs.

James also examines international examples to further highlight the risks and complexities of adopting judge-alone trials.

James’ article was published in Fraud Intelligence, 21 August 2025.

“It gives protection against laws which the ordinary man regards as harsh and oppressive … an insurance that the criminal law will conform to the ordinary man’s ideas of what is fair and just. If it does not, the jury will not be a party to its enforcement.” – Sir Patrick Devlin, Trial by Jury (Hamlyn Lectures, 1956).

Sir Brian Leveson’s recent recommendations to reform England and Wales’ criminal justice system have ignited fierce debate across the legal profession. Among his most controversial proposals is allowing judge-only trials in certain serious and complex cases, particularly for very complex fraud (recommendation 44). While presented as a pragmatic solution to mounting court delays and case complexity, this fundamental shift away from jury trials deserves scrutiny that extends beyond mere expedience.

The criminal justice system undoubtedly faces a crisis. Trial by jury is not always the most sensible approach, according to the Leveson Review, and the backlog of cases has reached critical levels. Yet the proposed remedy, removing centuries-old safeguards in favour of judicial efficiency, risks undermining the very foundations of democratic justice. Judge-alone fraud trials may create more problems than they solve, fundamentally altering criminal defence, constitutional protections, and public confidence in our justice system.

Defence Strategy: From Narrative to Technicality

The shift to judge-alone trials would fundamentally transform how defence lawyers approach complex fraud cases. Currently, defending serious fraud allegations requires balancing technical legal argument with accessible narrative construction. Defence counsel must distil complex financial evidence into comprehensible stories that resonate with ordinary citizens serving as jurors.

This dynamic would vanish under Leveson’s proposals. Defence strategy would pivot dramatically towards pure legal technicality and evidential challenges. While this might seem to elevate intellectual rigour, it risks creating a more sterile, less human form of justice.

The current system’s requirement for lawyers to make their case accessible to ordinary citizens serves as a crucial check on prosecution arguments. If a case cannot be explained clearly to twelve reasonable people, questions arise about its fundamental merit. Judge-alone trials eliminate this democratic filter, potentially allowing legally sound but practically questionable prosecutions to proceed unchallenged by common-sense scrutiny.

The current jury system forces defence teams to consider how their client’s actions might appear to ordinary citizens, a perspective that often proves invaluable in assessing case strength and developing strategy. Judge-alone trials would remove this essential element of public accountability from the defence process.

Constitutional Impact: Undermining Historic Safeguards

The proposals to allow trial by judge alone represents a radical departure from the long-established mode of trial, touching the very heart of our constitutional arrangements. The right to trial by jury has evolved over centuries as a fundamental protection against state overreach, embodying the principle that citizens should be judged by their peers rather than solely by state-appointed officials.

In fraud cases, where the state brings serious allegations that can result in lengthy prison sentences and professional ruin, this safeguard assumes particular significance. Corporate executives, professionals, and business owners facing fraud charges often confront not just criminal sanctions but the complete destruction of their careers and reputations. The gravity of these consequences demands the most robust procedural protections our system can provide.

The constitutional role of jury trial extends beyond resolving individual cases, shaping the balance between citizen and state.

Juries serve as a democratic safeguard, ensuring that criminal verdicts reflect the community’s sense of justice. Their independence allows them to assess facts free from political pressure, protecting individuals from the unchecked power of the state in a way judicial decision-making alone cannot. While the present proposals arise in a time of acknowledged crisis in the justice system, constitutional protections should not be traded away for the sake of administrative expediency.

Public Participation and Transparency: Elite Justice for Elite Crime

The removal of juries from white-collar crime cases risks reinforcing damaging perceptions that the justice system operates by different rules for different classes of offender. Critics label it cut-price justice, and this characterisation deserves consideration.

Complex fraud cases often involve wealthy defendants and sophisticated legal representation. The current jury system ensures that such cases remain subject to community oversight and judgment. Twelve randomly selected citizens bring diverse perspectives and values to bear on allegations of financial wrongdoing.

Judge-alone trials would eliminate this democratic element precisely in cases where public accountability matters most. White-collar crime affects entire communities through its economic impact, yet the proposed reforms would remove community representatives from the decision-making process.

This risks creating a two-tier system where ordinary criminals face community judgment while elite offenders receive what might be perceived as more favourable treatment from professional judges. Such perceptions could seriously undermine public confidence in the equal application of justice.

International Perspective: Lessons from Abroad

Australia, Canada, New Zealand and the US all permit judge-alone trials in circumstances broadly similar to what Leveson is proposing. Yet the detail matters. In Canada, a judge-alone trial cannot be imposed without the defendant’s consent, with the right to a jury preserved for offences carrying a maximum sentence of five years or more. In Australia, the right to a jury trial for indictable federal offences, including those involving dishonesty, is written into the Constitution. Press coverage suggests New Zealand’s judge-alone list is already backing up, with too few judges, insufficient court time, and a lack of space to hear cases.

The Australian experience also offers sobering insights into the potential consequences of judge-alone fraud trials. Data from New South Wales shows just how much the choice of trial mode can matter. On average, defendants in judge-alone trials were nine percentage points more likely to be acquitted, their hearings were shorter, and prison sentences were around 7.6 months lower. The gap was even greater in cases involving prejudicial or complex evidence, the kinds of matters more likely to be tried without a jury. These differences could be down to the types of cases that fall into each category rather than the trial format itself, but the trend is clear enough to raise doubts about whether the two modes deliver the same standard of justice. Such disparities would further erode public confidence, particularly in high-profile fraud cases. If judge-alone trials consistently yield different results from jury trials, they amount to a qualitatively different form of justice, not simply a quicker one.

The Expertise Fallacy: If Judges Don’t Understand, Who Does?

A particularly revealing moment came during Lord Leveson’s recent appearance on the Double Jeopardy podcast with Ken Macdonald KC and Tim Owen KC. In the very context of discussing complex fraud cases, the very sort he says may be unsuitable for juries, Leveson remarked: “I’m readily prepared to confess that I do not understand the complexity of futures trading and derivatives.” This admission, while refreshingly honest, exposes a fundamental flaw in the entire rationale for judge-alone fraud trials. If Lord Leveson himself, one of England’s most senior judges and the architect of these very reforms, lacks understanding of financial instruments, where exactly are the judges who possess the expertise to handle complex fraud cases effectively?

The assumption underlying judge-alone trials is that judicial training and experience make judges inherently better equipped than juries to navigate complex evidence. Yet Leveson’s confession reveals that even the most distinguished members of the judiciary may lack the specialised knowledge that modern fraud cases demand. This raises uncomfortable questions about whether transferring complexity from twelve lay citizens to one legally trained but financially inexpert judge actually solves the comprehension problem at all.

Indeed, it may create new problems. At least juries can ask questions, seek clarification, and deliberate collectively to understand complex concepts. A single judge, conscious of appearing ignorant or slowing proceedings, may be reluctant to admit confusion or seek the detailed explanations that proper understanding requires.

The current system recognises these limitations by providing expert witnesses, detailed jury directions, and simplified presentations of complex evidence. If these mechanisms are insufficient for juries, what additional tools would be available to equally bewildered judges?

This expertise gap becomes more troubling when considered alongside the career backgrounds of most senior judges. Few have extensive experience in commercial finance, derivatives trading, or complex corporate structures. Their expertise lies in legal interpretation and procedure, not in the commercial realities that underpin fraud allegations. Yet judge-alone trials would require them to make factual determinations about conduct in sectors they may understand poorly.

Public Trust and Institutional Legitimacy

Perhaps the most compelling argument against judge-alone fraud trials concerns their potential impact on public trust in criminal justice outcomes. Three-quarters of respondents opposed judge-alone trials for complex and serious fraud offences when the Criminal Bar Association surveyed its members, suggesting significant professional scepticism about the proposals.

High-profile corporate crime cases already struggle with public perceptions of insufficient accountability and lenient treatment of white-collar offenders. Removing juries from such proceedings risks exacerbating these concerns, potentially creating public perception that wealthy defendants receive preferential treatment through judge-alone proceedings, particularly if, as data from other Australia suggests, they result in lower conviction rates and shorter prison terms than in serious and general crime cases.

The concentration of decision-making power in a single judge, however skilled and impartial, creates vulnerability to individual bias, error, or misunderstanding that jury deliberation might otherwise catch and correct. While judges possess legal expertise that juries lack, they may also harbour unconscious biases or blind spots that diverse jury perspectives might illuminate.

Public trust in verdict legitimacy depends partly on transparency and community participation in the justice process. Citizens may struggle to accept criminal outcomes that emerge from proceedings where community representatives played no role, particularly in cases involving serious allegations against prominent individuals or corporations.

The symbolic significance of jury participation extends beyond its practical effects. Juries embody the principle that serious criminal allegations require proof to the satisfaction of ordinary citizens, not merely legal professionals.

Crisis Demands Better Solutions

The criminal justice system’s current crisis demands urgent attention and innovative solutions. Court backlogs, case complexity, and resource constraints create genuine pressures that cannot be ignored. However, Leveson’s recommendation for judge-alone fraud trials represents a regressive response that prioritises administrative convenience over constitutional principle.

Eight in 10 respondents said more Crown court sitting days should be the top priority to fix the justice system, suggesting that practitioners believe the crisis requires investment in capacity rather than abandonment of fundamental safeguards.

Rather than removing juries from complex fraud cases, the system might benefit from improved case management, better judicial training in financial matters, enhanced jury education about complex evidence, and increased court capacity. These approaches would address the underlying problems while preserving democratic participation in serious criminal proceedings.

The evidence from other jurisdictions counsels caution about judge-alone trials, revealing systematic differences in outcomes that suggest these represent a fundamentally different form of justice rather than merely an equivalent alternative.

Justice delayed may indeed be justice denied, but justice without community participation in serious criminal cases risks becoming justice denied in a more fundamental sense. The criminal justice system’s legitimacy depends on maintaining public confidence in its fairness, transparency, and democratic accountability. Judge-alone fraud trials, whatever their administrative advantages, threaten to undermine these essential foundations.

The choice facing England and Wales is not between efficiency and delay, but between investment in democratic justice and retreat from its fundamental principles. The former demands resources and commitment; the latter offers only the illusion of progress while hollowing out the constitutional safeguards that distinguish democratic criminal justice from mere administrative processing of alleged offenders.