决策在刑事审判中的比较方法:留学生作业

本文旨在分别研究在英国和法国的刑事陪审过程，这个过程主要被用于对抗和审问法律制度。在继续提供这方面的文献综述的讨论之前，文章旨在提供一个简介。本文考虑对抗性和纠问式系统，需要在提供案例研究和考虑到两者之间谁是最佳的。最后一点，现存有争议认为有必要在21世纪进行两个系统的合并，像是在法律制度下合并人权法一样。

在刑事审判中寻求考虑决策的性质的过程中，有必要看看提供的陪审制度的比较研究（特别是关于英格兰的）和民事法律制度（特别是关于法国的）。这样做的理由是，有必要在全球范围内依据它们应用的条件以及它们被使用情况了解该陪审团系统变化。考虑到这一点，就必须认识到两个主要系统，这两个主要系统是通过陪审团确定的广泛定义，并且是在陪审团各自对抗性和纠问式管辖范围内。然而，虽然这个过程中确切的性质和使用是高度依赖于该国的法律框架的，法律的主体通常是国家预先确定将要使用的刑事陪审团过程的框架。对抗系统主要用于在普通法体系（例如，在英国法），而调查制度采用的是民事法律制度（例如，在法国的法律）。因此，有各种各样的论据来支持使用对抗系统胜过纠问式系统，反之亦然，因为，通过举例的方式来说，对抗系统是基于一个前提，即被告能够面对自己的原告（布洛克等，1999 ）。

This essay seeks to investigate the criminal jury processes that are utilised in the adversarial and inquisitorial legal systems principally in England and France respectively. It seeks to provide an introduction before going on to provide a literature review of this area of discussion. This essay then considers adversarial and inquisitorial systems before providing a case study and consideration of whether somewhere in between is best Finally, it will be argued there needs to a merging of the two systems in the 21st century as legal systems look to merge under human rights law.

In seeking to consider the nature of decision making in criminal trials it is necessary to look to provide a comparative study of the Jury System (with particular reference to England) and the Civil Law System (with particular reference to France). The reason for this is that there is a need to understand that jury systems vary throughout the globe in terms of both their uses and when they are used. With this in mind, it is necessary to recognise that are two main systems that broadly define the approach of the jury process in the respective jurisdictions which are adversarial and inquisitorial. However, although the exact nature and use of the process is highly dependent on the legal framework of the country, the body of laws that frame the country usually predetermine the criminal jury process that will be utilised. The adversarial system is used predominantly in common law systems (for example, in English law), whereas the inquisitorial system is used in civil law regimes (for example, in French Law). Therefore, there are a variety of arguments that support the use of the adversarial system over the inquisitorial and vice versa because, by way of illustration, the adversarial system is based on the premise that the accused can face their accuser (Block et al, 1999).

The problem in this regard is that this can create vulnerable victims and witnesses – like children, for example - will have to undergo the stress and fear that is associated with a jury trial that is attack on their evidence in order to develop the role of the impartial referee with the provision of balanced arguments to the jury (Hodgson, 2010). On the other hand, however, there is a need to appreciate that the inquisitorial system is the process where the court is actieving the investigation of the facts. Therefore, a key problem with this approach is that there is no impartial referee in the case of the adversarial system whereby the jury has to decide on the evidence that is not always even in practice (Hodgson, 2010). With this in mind, although there are a number of key problems with both approaches, the following two key questions are fundamental to advancing this study's discussion – (a) Should impartiality be considered to be more important than the wellbeing of vulnerable witnesses in England? and (b) Should the direction and supervision of the jury, evidence and court be identified as the essential elements of the proceedings and arguably trumping objectivity in France?

On this basis, this dissertation looks to explore the benefit and disadvantages of both the adversarial and inquisitorial systems of law through consideration of the case law court decisions that have been reached in both the adversarial and inquisitorial systems. Then it is necessary to consider whether they can be merged to be able to develop a system where the benefits of each of the two systems of law are melded together. With this in mind, it will be recognised that a key example of finding this middle ground such as the Canadian legal system has been developed to then be able to gain the benefits whilst mitigating the disadvantages of the adversarial and inquisitorial systems (Roberts, 2007 & Vidmar, 1999). Therefore, the key argument to be derived from this discussion is that there needs to a reconsideration of both pure civil and common law systems. This has effectively caused the split between adversarial and inquisitorial jury systems and serves to reinvigorate the role of juries in the 21st Centuries where there is a need to appreciate bodies of criminal law are merging due to international legal enactments put in place like the European Convention on Human Rights (ECHR) 1950 and regional legal systems the European Union (EU). As a result, it seems arguable that there is a clear need for finding some form of middle ground.

Chapter 1: Introduction

1.1 Aim

This study seeks to explore the advantages and disadvantages of the inquisitorial and adversarial jury systems respectively through a comparative review of the French and English models of the jury and civil law systems respectively.

1.2 Objectives

In looking to fulfil this study's aim the research and discussion that is carried out seeks -

(a) To undertake a theoretical review of both systems and explore the underpinnings of the adversarial and inquisitorial system

(b) To explore the global context for both the inquisitorial and adversarial system

(c) To undertake a comparative review of the French inquisitorial and English adversarial jury systems

(d) To investigate the possibility of developing a jury system that finds middle ground between the inquisitorial and adversarial legal systems of France and England.

Chapter 2: Literature Review

This literature review seeks to undertake a discussion of the literature that is put in place regarding the subject for determining the nature and scope of the adversarial and inquisitorial systems of law via a comparative between the respective English and French legal systems. Therefore, this will mean looking to highlight some of the key arguments that have been made for and against the practical operation of the respective systems with a view to devloping what are now referred to as 'Middle Ground' jury systems. The reason for this is that it has come to be recognised that most jurisdictions approaches to each of the two systems are often considered to be divided on the basis of their being formal distinctions in how cases should be reviewed. However, it has also proved to be somewhat debatable as to whether the results achieved could be distinguished between the two systems if those cases that come before them were conducted via the contrasting approaches. This is because the reality is that there are no statistics in place that could serve to illustrate as to whether or not the adversarial and inquisitorial systems of law could achieve the same results.

Nevertheless, it should be noted that the inquisitorial and adversarial approaches to the resolution of legal disputes are commonly a significant issue of national pride with clear opinions shared amongst jurists regarding differing approaches along with their drawbacks. Those whole look to favour the remit of the adversarial system all too commonly argue that it is much fairer and considerably much less prone to being abused over and above the inquisitorial system. The reason for this is that it serves to permit a lot less room for the individual state to look to be biased in criminal proceedings brough against a defendant. In addition, the adversarial system serves to permit the majority of private litigants to look to bring about the settlement of their particular disputes in what is considered to be a suitably amicable way through the discovery and pre-trial settlements whereby non-contested facts are agreed and not to be dealt with during the trial. Moreover, those who favour the adversarial system have argued the inquisitorial system is overly institutionalised and, therefore, somewhat removed away from what has been recognised as the average citizen within a given society. With this in mind, the lawyer in common law trials have a significant opportunity to determine the truth of a particular case in court carefully prepared through a procedure of discovery that supports evidence's review and testimony before it is put before either a judge or jury to make a decision on.

On this basis, it has been recognised that the lawyers that are party to the resolution of such cases have a significant idea of agreement and disagreement regarding the scope of the issues that are to be presented in a given trial that develops largely in a similar manner to investigative judges roles. Moreover, a jury trial of one's peers could be considered to be more impartial than any national government paid inquisitor along with their peers on a panel. By way of illustration, in the US trial by jury of one's peers who are common citizens is ensured by the US Constitution. However, those who favour the utilisation of the inquisitorial system have looked to dispute these points that have been raised by those who would look to favour the adversarial system. With this in mind, those who look to favour the use of inquisitorial system have argued the majority of cases in adversarial systems are commonly resolved through the use of plea bargains and settlements.

The plea bargain process is not, however, present in the inquisitorial system. Such a view is based on the fact that the majority of cases that come before the courts in such systems do not actually go to trial practically. Therefore, it is arguable that this could then lead to significantly greater injustice in the event that a defendant has an attorney who is unskilled or overworked when the defendant is poor. Moreover, those who favour inquisitorial systems of justices operation have argued plea bargain processes cause participants within the adversarial system to carry out their activities in something of a perverse manner since it encourages prosecutors to bring charges that dramatically exceed what is warranted and defendants to plead guilty even where they are not. In addition, those who favour inquisitorial systems operation have also argued the judge's power is limited by lay assessors use and a panel does not have to be any the more biased than any jury. Furthermore, those favouring the inquisitorial system have not been afraid to attack the adversarial system for bringing about the accurate resolution of complicated technical issues inluding technology or tax regulation.

Under the adversarial system of law juries have, for the first time, encountered what are significantly complicated technical cases. This means that this would then effectively bring about what could be considered to be unjust outcomes for one or both parties to litigation because of a lack of understanding of the evidence that had been put in place. With this in mind, via the inquisitorial system, the judge, who is clearly not considered to be expert in all technical subjects, would have looked to deal with similar tax, forensic, or accounting related issues on numerous occassion. In addition, the verdict that is reached in inquisitional cases needs to include the given judge presiding's written justification. On this basis, when new evidence materialises the defence and/or the prosecutor is able to appeal because the verdict was incorrectly reasoned under the inquisitorial system. Then, conversely, under the adversarial system there is a need to know that neither defence nor prosecutor in such cases need to know the actual discussion that took place whilst the jury is must maintain secrecy in the circumstances. Therefore, appeal needs to be made because contest between the defence and the prosecutor was unfair which is not the same as truth under the inquisitional system.

With this in mind, a key difference between the adversarial system and the inquisitorial system arises in the event that a defendant admits their guilt to their particular crime they are accused of. But, where the parties are operating within an adversarial system, there is no more controversy so a particular case arising then goes for sentencing – although in a number of jurisdictions it is necessary for a given defendant to have some form of allocution of their crime since false confessions are unacceptable even in courts in common law systems. Conversely, however, in an inquisitiorial system where the defendant in a particular case confesses this is simply another fact included in evidence in a given case. In addition, there is also a need to understand a defendant's confession does not bring about the removal of a need for the prosecution to provide a full case. This permits the plea bargaining process' use in adversarial systems in a manner too difficult or verging on the impossible in inquisitional systems of law as many criminal cases are handled in countries like the US and the UK are handled without trial through such plea bargains. Additionally, in view of the fact that the adversarial system believes evidence should be provided by presentation to laymen rather than jurists, rules of evidence are significantly stricter. Furthermore, the rules that have been put in place regarding are considerably stricter in the majority of systems of adversarial law than in inquisitorial systems. However, this idea must be qualified by the fact it is common for tribunals lower down in the legal hierarchy to be permitted a level of flexibility when applying the common law rules of evidence like in proceedings involving small claims where parties are commonly without lawyers and the judge is an inquisitor to protect children's interests rather than an impartial arbiter.

Chapter 3: Methodology

In seeking to consider the methodology utilised for the purposes of producing this discussion there is a need to recognise that research for this dissertation's study is largely based upon a 'black-letter approach' to the primary sources of law and the secondary sources that serve to provide added scope to this discussion. The reason for this is that there is a need to recognise that, with its foundations resting in the world of legal positivism, along with rationality and logic, in looking to study the primary sources of law there is a need to consider the legal meaning of both rules and principles in the area under discussion. This is because this study ostensibly seeks to determine the nature and scope of the adversarial and inquisitorial systems of law via a comparative between the respective English and French legal systems in this regard. Such a view is based on the fact that such an approach recognises the fact law has its own self-contained existence that have been derived from key principles in positive law with its unrestricted sovereignty an expression of policy makers absolute power to formulate, interpret, amend and enforce rules.

Understanding the law in relation to the development of the nature and scope of the adversarial and inquisitorial systems of law via a comparative between the respective English and French legal systems is founded upon an objective set of rules recognition autonomous and independent from politics and ideology. The reason for this is that reasoning and interpretation of the law should not go beyond the rules as they are presented with a view to then identifying the purpose and function of the law in this regard through the qualitative research that is generated. On this basis, there is a need to recognise legal rules validity in practice are effectively determined through consistency with existing law since both the coherency and rationality of legal norms serves to permit the judiciary to be able to make decisions that are considered to be ‘legally correct’. The 'black-letter approach' is also limited to a degrees because it is somewhat rigid and formalistic. Such an approach has also proved to be quite problematic in view of the fact that the idea of the way in which the law develops is an independent, objective and coherent system of state sanctioned rules does no fully capture as to how complicated the law can prove to be in practice in a given area in creating, identifying, articulating and applying rules. The reason for this is that it will be shown that the law is a dynamic and institutional process of procedural requirements and rhetorical techniques with a view to determining facts. With this in mind, rules selective interpretation must be studied closely because rules arguably lack objectivity, neutrality and determinacy.

Nevertheless, it is necessary for there to be a certain element of socio-legal research that serves to expose discrepancies between laws in books and in practice. But it would be inaccurate to define studies that are socio-legal as little more than empirical since theyalso commonly entail work of a theoretical nature on many aspects of law and society's complicated dynamics. Therefore, academics have sought to bypass the gap that is currently present between sociology, law, economic and social policy because it transcends exclusively doctrinal analyses. In addition, the socio-legal approach assumes no account of legal rules is complete unless it is based on an empirical grasp of how the rules are selectively used in practice because even where legal rules apply in principle they are, in practice, often either bypassed or only selectively enforced. With this in mind, processes of advice and negotiation are often used instead or to then complement the legal dispute resolution since the socio-legal approach to researching for this kind of study focusses upon legal rules social nature, functions and implications.

Finally, it is necessary to use research's critical method as part of an evaluative process to consider the nature and scope of the adversarial and inquisitorial systems of law via a comparative between the respective English and French legal systems. This research study would then also provide an assessment of the way the legal world functions and is organised as opposed to claims made regarding how the legal world should work. Therefore, the law that is under discussion as part of this study will be subjected to evaluation according to some external criteria or internal ones. Moreover, the critical method serves to challenge and overturn accepted norms and standards. This is because the theory's proponents believe the law's logic and structure grows out of a society's 'power relationships'. Therefore, any given area of law has arguably been put in place to support a party or class' interests that forms it and is merely a collection of beliefs and prejudices that legitimise society's injustices through oppression to maintain their hierarchical position.

Chapter 4: Adversarial System

4.1 Theoretical Grounding

In seeking to explain the adversarial system there is a need to understand that the legal system is reliant upon the recognition of competition contest between each of the advocates being used looking to represent their party's positions whilst either an impartial individual person or group (usually judge or jury respectively) trying to determine the case's truth. However, under the inquisitorial system, a judge (or group working together) seeks to investigate proceedings in a given case. Generally, the adversarial system has been adopted in countries founded on the common law – although an exception could arise for violations of a more minor nature like traffic offences. In addition, in Europe amongst certain systems of civil law, the inquisitorial system of proceeding with the resolution of cases could be utilised for particular types of case law resolution. But the adversarial system is effectively founded on a 'two-sided structure' whereby courts at criminal trials look to place the prosecution against the defence so that justice is then considered to be achieved when who is recognised as to most effective adversary can convince the judge or jury their perspective is correct.

With this in mind, some academics have looked to trace the recognition of developments in relation to the adversarial system to what was labelled as 'trial-by-combat' in medieval times whereby some litigants – particularly womean – could permit a champion to be able to represent them in proceedings. A jury's utilisation in practice in the common law legal system seems to have brought about the adversarial system and brought about the opportunity for both parties to litigation to be able to look to argue their opinions. Since the accused in a given case could not be compelled to look to provide give evidence in what are criminal proceedings of an adversarial nature they could then not be subject to questioning by either a prosecutor or judge except where they choose to. But in the event that the accused chooses to testify, they will then be subject to a degree of cross-examination running the risk of then being found to be guilty of perjury. Since the election to bring about the recognition of a given accused's right to silence serves to stop an examination or cross-examination of an individual's position. On this basis, it seems arguable counsel's decision regarding the evidence to be used is considered to be a vital tactic in any given case under the adversarial system so it may be argued the lawyer is manipulating the truth because counsel's skills on both sides must be equally pitted before a judge considered impartial.

Conversely, although in the majority of civil law systems defendants may be compelled to provide a statement, this statement is not to be subjected to the prosecutor's cross-examination or be given under oath. The defendant is, therefore, permitted to be able to explain their side of a given case without their being subjected to cross-examination by an opposition that is considered to be suitably skilled. The reasoning for this is mainly due to the fact that it is not the prosecutor but the judges that look to question the defendant. Therefore, the process of cross-examining parties to court proceedings is entirely based in the common law adversarial structure, whilst judges are deemed impartial in looking to guarantee due process' fair play or fundamental justice. With this in mind, judges decide, commonly when called upon by counsel, the evidence to be included in particular proceedings in the event that a dispute arises - although in certain common law countries jurisdictions it is to be appreciated that the judiciary have looked to play a greater role in deciding the evidence to admit. On this basis, at a minimum it has been recognised abusing judicial discretion would lead to a biased decision rendering the judicial process obsolete with the rule of law then being somewhat illicitly subordinated through recogntion of the rule of man in circumstances that are found to be discriminating.

In addition, the rule of evidence has been developed over time so as to be founded upon a system of adversaries objections along with the basis for which it may serve to be prejudicial to the trier of fact that could either be the an individual judge presiding or a jury sitting as a group. This effectively means that rules of evidence can be utilised to provide a judge with what are limited inquisitorial powers that could serve to exclude evidence that they consider to be untrustworthy or irrelevant to the particular legal issue that is in dispute. By way of illustration, Justice Megan L. A. Brown determined that it is necessary for all evidence to be relevant and to not in any way be hearsay, whilst academics like Murphy have sought to provide more instructive examples. Murphy specifically made reference to what was a frustrated judge in an English (adversarial) court who finally asked a barrister in the event that witnesses had produced significantly contrasting accounts “Am I never to hear the truth?” Interestingly, in Murphy's example, the barrister then responded “No, my lord, merely the evidence” But, at the same time, it is arguable the 'adversarial system' could be considered to be somewhat misleading since it has been implied that it is only in such system where there there are opposing prosecution and defense.

The reality, however, is that this is something of a misnomer. This is because both contemporary adversarial and inquisitorial systems of justice have national state powers separated between a prosecutor and the judge whilst also permitting defendants the the right to receive counsel. The reason for this is that Article 6 of the European Convention on Human Rights (ECHR) 1950 (Human Rights Act 1998) needs these features to be included in its signatory states national legal systems. This is an important point because the provision of counsel as of right in trials of a criminal nature was originally not acceptable in certain adversarial systems since there was a prevailing view the facts should be the sole consideration. For example, it was only under the Prisoners' Counsel Act 1836 that the English legal system served to permit suspects legal counsel as a right in criminal proceedings. Conversely, in the US retained counsel have been able to appear in all federal cases of a criminal nature since the US Constitution was implemented. Indigent defendants appointement of counsel was almost wholly universal in cases involving federal crimes - although it could prove somewhat distinct in cases from one state to another. But it was not until 1963 that the US Supreme Court found legal counsel is to be offered at the individual state's cost for indigent felony defendants under the Sixth Amendment of the US Constitution (see, for example, Gideon v. Wainwright 372 US 335 (1963)).

It is also interesting to note, however, that in some adversarial systems of legislation, the courts may make inferences regarding the failure of an accused to face either cross-examination or to resolve a particular issue of contention. As a result, this has served to illustrate the usefulness of silence as a defence tactic. For example, under English law the Criminal Justice & Public Order Act 1994 permitted these kinds of inferences to be made for the first time in England and Wales. But many of those working in this area have criticised what is effectively the end of the 'right to silence' - although the accused in a given case still has the right to silence and not be made to stand in their own defence. Nevertheless, in the US the Fifth Amendment has effectively served to provide for prohibitting a jury from reaching negative conclusions founded upon the defendant's use of their right not to testify and the jury needs to be instructed if the defendant requires it.

4.2 Global Context

4.3 English Jury System

The English jury system is considered to be particularly influential in view of the fact that a number of former and current British colonies, including the US, looked to adopt the common law approach to dispute resolution of which the jury trial is an integral facet. A number of significant traditions including a jury of twelve members arose originally in England. Interestingly, according to noted English historian George Macaulay Trevelyan (1959), at the time of England's occupation by the Vikings “The Scandinavians, . . . , were a litigious people and loved to get together in the 'thing’ to hear legal argument”. Moreover, although it was widely recognised that the Vikings “had no professional lawyers, but many of their farmer-warriors, . . . , were learned in folk custom and in its intricate judicial procedure” (Trevelyan, 1959). In addition, it is interesting to note that “A Danish town in England often had, as it principal officers, twelve hereditary ‘law men’” so that “The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system” (Trevelyan, 1959).

Nevertheless, despite the recognition of such developments, it was not until the twelfth century that Henry II made a significant step towards the effective development of the jury system when establishing a system to bring about the resolution of land disputes. In keeping with the previous reference to the use of the twelve man jury panel in the US, a jury of twelve free men was put into place to arbitrate in the resolution of land disputes. One of the most fundamental differences, however, was that unlike the modern juries that are used today, these twelve men panels appointed for resolving land disputes had to seek to uncover the facts of a given case alone rather than having previously listened to advocates arguing the case of the parties they are representing before a court. In addition, Henry II developed the 'grand jury' through the 'Assize of Clarendon' that meant a jury of free men was then effectively charged with reporting any crimes they were aware of in their hundreds to a 'justice in eyre' on a circuit leading to trial by ordeal.

By 1215, however, in view of the Church prohibitting the clergy's participation in trial by ordeal serving to effectively make it illegitimate since the juries operating under the 'Assize of Clarendon' began looking to decide upon matters of guilt along with providing for the accusations of offences being made. In addition, in the same year jury trials became an explicit right under Article 39 of the Magna Carta that stated in the original latin - “Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae”. Paraphrasing the translation that was provided by Lysander Spooner in his 'Essay on the Trial by Jury', Article 39 of the Magna Carta served to provide that no free person will be deprived of their property “or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed”. In addtion, it was also provided that there was no right to “proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land”. Effectively, this meant that the law of the land at this time was deemed to be 'consuetudinary law founded upon the customs and consent of the King's subjects at this time and, since there was no Parliament in place during this period, law could not be made within the people's consent within society as it stood.

During the fourteenth century people that sat on what was recognised as the 'Presenting Jury' (i.e. now the Grand Jury) for that crime (25 Edward III stat 5., c3 (1353)) effectively meant Medieval juries were somewhat self-informing. This is then only further reflected by the fact that people were selected jurors because of knowing either the parties and the facts or having the duty to discover them to spare the government the costs. As time has progressed, however, English juries have become a significantly less self-informing and looked to rely much more upon the value of the particular trial itself for information regarding the case – although the fact of the matter remains that jurors were free to investigate cases until the 17th century. Therefore, with the development of the jury system in more contemporary times, as has already been stated, a number of English colonies have looked to adopt this system. This is particularly true of the position in the US where the utilisation of jury trials in criminal cases were a significant protected right under the original US Constitution, whilst the Fifth, Sixth and Seventh Amendments have serve to extened such rights civil proceedings with a grand jury then put in place for much more serious cases.

Now, however, within the English legal system minor criminal cases are heard without the use of a jury before the Magistrates' Courts. Those criminal offences that are deemed to be middle ranking (i.e. 'triable either way') offences can be tried by magistrates or through jury trial in the Crown Court. Then the criminal offences that are considered to be serious ('indictable') offences have to be tried before a jury before the Crown Court. But juries do not only sit in criminal cases. There is a need to appreciate that juries sit in some defamation cases and as well as some cases involving the state, whilst also sitting in coroner's courts where contentious issues arise. Regardless of whether it is a civil or criminal matter in contention, however, all juries sitting in English courts consist of twelve people that are aged between 18 and 70 who are selected randomly from the national voters register in regional proximity to the court. Then, when it comes to the matter of their decisions, it is to be noted that, whereas in the past a unanimous verdict was needed with a view to passing judgement in a particular case, now, if the jury panel in place fails to agree within a specific timeframe, the judge presiding can use their discretion to allow a verdict by a majority of 10-2.

Nevertheless, despite the potential connotations for the recognition of the right to a fair trial under Article 6 of the ECHR 1950, the then Home Secretary Jack Straw looked to implement a somewhat controversial new bill to limit the right to jury trial in 1999 that became the Criminal Justice Act (CJA) 2003. That this has proved to be the case is despite the fact that legislation must be compatible with rights protected under section 3 of the HRA 1998. However, the provision at risk of being infringed by a reverse onus is Article 6(2) by which everyone charged with a criminal offence is presumed innocent (Lewis, 2000, at p.868). But, even where Parliament appears clearly to have intended to impose a persuasive burden of proof on the defendant, if the court considers a literal interpretation of the relevant provision would be incompatible with the presumption of innocence guaranteed under the ECHR 1950, it must ‘read down’ that provision (Ghaidan v. Godin-Mendoza). The imposition of an evidential burden will not, however, ordinarily be incompatible (A-G's Reference (No 1 of 2004), R v. Edwards). However, the CJA 2003 looked to eliminatethe use of trial by jury for those cases that involved elements of jury tampering or instances of complicated fraud and eventually was put into place as an amendment in 2007 for jury tampering (the provision for fraud was, however defeated). The current Attorney General, one Lord Goldsmith, has, however, since looked to implement similar provisions for instances of complicated fraud through the Fraud (Trials Without a Jury) Bill that looked to abolish jury trials in such cases.

The problem was that the Fraud (Trials Without a Jury) Bill was subjected to some significant criticism from the House of Commons before ultimately being defeated in 2007. As a result, the first really serious offence to be tried without a jury for 350 years arose in 2009. The reason for this unusually bold decision to be taken was that three previous trials of the defendants had been halted because of jury tampering so that Lord Chief Justice Judge made reference to the significant costs already accrued along with the burden upon the jurors for proceeding without a jury. However, such a groundbreaking decision was not left to go without criticism. Liberty's director of policy, one Isabella Sankey, aregued that this was “a dangerous precedent”. This is because Sankey believed that “The right to jury trial isn't just a hallowed principle but a practice that ensures that one class of people don't sit in judgement over another and the public have confidence in an open and representative justice system”. Therefore, as of 2010, the four defendants convicted on the 31st of March.