In her contribution to the BBC’s “Rethink” series last week, Baroness Hale, the recently retired President of the UK Supreme Court is right to say that the COVID-19 pandemic has provided “a golden opportunity for a radical rethink of how we do trials”. Although she does not single out any particular category of cases, this statement is perhaps especially true for cases concerning corporate criminal misconduct.
Judges already decide questions of fact in some of the most high profile cases concerning alleged corporate criminal misconduct (as they do when determining similar questions in civil cases). Cases in which corporate organisations enter into deferred prosecution agreements (DPAs) with UK authorities are dealt with by judges sitting alone.
The case of Skansen Interiors Limited, the only corporate organisation to be convicted following a contested trial in relation to the meaning of “adequate procedures” for the purposes of section 7 of the UK Bribery Act, illustrates the additional uncertainty faced by corporate organisations in cases where decisions on the application of technical or legal guidance to commercial situations is taken by a jury.
The absence of a reasons for the jury’s decision means that other corporates are little wiser after the conviction about what procedures will be adequate for them to avoid a similar fate. In her remarks, Baroness Hale identifies the fact that judges must give detailed reasons for decisions (whereas juries are prohibited from doing so) as one potential advantage to a judge-only trial.
Pressure on already stretched court time and resources will only grow as scrutiny of the conduct of corporate organisations and executives during the time of COVID-19 gets underway. The substantial challenges highlighted and sharpened by the crisis demand an evaluation of which arrangements work effectively, and which may be improved.
We have a golden opportunity for a radical rethink of how we do trials. Let's hope it is taken.