Dr Kieran Mullan
MP for Bexhill and Battle · Conservative · United Kingdom
“I welcome the opportunity to give my personal views on this Bill, as colleagues in health have taken over responsibility for it. I have spent most of my life as someone who was highly sympathetic to the cause of assisted dying and imagined that I would support it if I ever was an MP, but that changed in 2018 when I read the Gosport War Me…”
“I will not; there is not time. While I do not seek to say that the Bill will be used in that way—to deliberately bring about an end to the lives of confused or elderly patients—my worry is about how it will insert itself into that battle in our country between the best and worst of our natures, in families, conversations and settings wher…”
“The report describes what happened to some of them. One patient was admitted for respite care but deteriorated and became confused during his stay. Staff asked permission to give him diamorphine, but his daughter refused as he was not in pain. However, his wife later agreed, and he was started on diamorphine via syringe driver.”
“It happened because the staff in that hospital and on that ward had developed a culture of prioritising convenience in looking after patients over the value of their lives.”
“I remain deeply sympathetic to the scenarios and circumstances that people have described, and I can personally foresee a situation where I would want to make use of this Bill and feel that it would benefit me, but we should not legislate for what we might want.”
“Then there is something that perhaps seems benign but is sometimes very challenging: the patients who continually call out for help again and again and again, perhaps asking for a medicine or a meal that they have already been given, and refuse to be consoled.”
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“If an allocation decision is found to be flawed only after a conviction, the state incurs the double cost of the original judge-led hearing and a subsequent jury retrial. If a case is allocated incorrectly, the defendant currently has no immediate recourse, and they must undergo the entire trial in the bench division. If, on appeal against conviction, it is determined that their allocation was indeed improper, the entire proceeding is voided. An interlocutory appeal lasting perhaps one or two hours is a negligible investment compared with the risk of a three-week trial perhaps being overturned on a procedural technicality regarding allocation. By resolving the question of the right forum at the outset, we ensure that when a trial does proceed, its verdict is final and resistant to procedural challenge.”
“The Government’s stated aim is efficiency, but efficiency without a safety valve of oversight often leads to systemic instability. By denying a defendant the right to appeal an allocation decision before the trial begins, we are not streamlining justice but creating a procedural blind spot. We believe that providing an immediate right of appeal is not only a matter of fairness, but the most efficient path available to the court. As we debated in relation to clause 3, on the Crown court bench division, the lack of such a mechanism risks baking in errors that can be rectified only through costly and time-consuming post-trial appeals. The pursuit of headline-ready speed must not eclipse the logistical reality that a trial conducted in the wrong forum is a wasted trial.”
“I beg to move amendment 47, in clause 4, page 11, line 1, leave out from “is” to end of line 2, and insert “a right of appeal against a decision to make an order under this section on the grounds of natural justice. (5A) where an appeal is made under subsection (5), it must not be heard by the judge who made the original determination.” This amendment would add a right for defendants to appeal against the decision for a judge-only trial for lengthy and complex cases. Much of our discourse has focused on whether judge-only trials should exist at all, but as with the previous amendments, we must also address the critical procedural omission in the drafting of this clause: the absence of a clear interlocutory right of appeal for a defendant against a decision to allocate them to a judge-only trial.”
“We have talked about the magistrates court and the Government seeking to restrict that, but even without that restriction, the vast majority of people do not seek to exercise an appeal right—when they already have that right and exercising it comes at a low opportunity cost—even though the Government’s argument is that it can be used as appeal for appeal’s sake. The idea that an appeal right would flood the courts with those types of cases does not stand up to much scrutiny. Even if that were the case initially, as the case law developed, it would become harder and harder for people to make appeals on this element of the process. On that basis, we will push the amendment to a vote.”
“We made that argument in relation to clause 3, but it is even stronger in relation to clause 4, because it is just so much more subjective and open to interpretation, and there is so much more room for judges to make decisions that the Court of Appeal find erred against what the Minister is intending through her legislation. This amendment is a genuine attempt to save trouble down the line. I hope—even if not at this stage—the Minister reconsiders her view that these appeals are necessary. We know that people are not allowed to make meritless appeals. They have to have legal advice from somebody, telling them, “Yes, you have a reasonable case to be made”, and so this will not become some frivolous thing.”
“My understanding of the law is that that would set a precedent and that anybody in those same circumstances allocated a trial without a jury would then be entitled to say that the law as then written by the Court of Appeal should apply to them. We could have a situation where dozens and dozens of cases were then ordered to be retried with a trial by jury. That would not only fail to have made the savings the Government wants to achieve, but make the situation even worse, leading to many more Crown court sitting days being taken up by these cases. The Court of Appeal approach on allocation will allow the case law to be built up quickly, ahead of trials and convictions, to bring the clarity that judges will need to make sure their decisions are not successfully challenged in the Court of Appeal.”
“I thank my hon. Friend the Member for Isle of Wight East for his remarks. I will paint a scenario for the Minister and ask whether she thinks it is one she will end up regretting if she does not accept at some point, if not at these stages, the idea that appeal is actually serving her own interests in reducing the backlogs. The scenario is that the Bill has passed, has been operating for a year or even two, and there have been multiple complex and lengthy cases heard without a jury under the schedules in this clause—potentially saving, in the Government’s own arguments of its merits, many days of crown court time—but then one of those people appeals post-conviction and successfully argues there was some error of judgment in the judge’s decision to allocate them a trial without a jury.”
“I beg to move amendment 50, in clause 4, page 12, line 27, leave out subsection (5)(a). This amendment would prevent the court unilaterally overriding a reason to issue a revocation order so that a case allocated for judge-only trial under this section could be tried by jury.”
“It would not prevent the court from taking into account delay, the interests of victims or the impact on the wider system, but it would ensure that, alongside those considerations, the court was also required to consider the interests of natural justice. Given the nature of the decision, that seems to be an essential part of a balanced framework. These amendments are intended to clarify how this framework will operate in practice. They are about ensuring that the conditions set out in the Bill have a clear effect, and that the factors guiding courts’ decision making reflect the full range of relevant considerations.”
“In debates on earlier clauses, I made the point that jury trial is, in some respects, a superior form of justice, even if we accept that it is not practical in every single case. That necessarily means that moving away from it is not a neutral step; it is a step that has consequences for fairness. When the court is deciding whether that position should continue and whether a case should remain judge-only or return to a jury, it seems entirely reasonable that fairness to the defendant should be part of that decision—not assumed or left to implication, but explicitly recognised. Amendment 48 would not remove any of the existing factors.”
“We have also discussed that defendants are not all in the same position. The system already recognises that in other ways, whether through good character, prior convictions or the wider consequences that a conviction may have on someone’s life. We treat individuals differently, because fairness requires us to do so. That is why the framework matters. If the court is directed to consider certain factors, those factors will shape how decisions are made in practice. If fairness to the defendant is not explicitly part of that framework, there is a risk that it will not be given the weight it should be. That is particularly important in this context, because we are dealing with decisions about whether a person should continue to be tried without a jury.”
“We have heard a great deal of evidence in Committee about the impact of delays, particularly on victims, and I do not think anyone would dispute that that is a serious concern. In my role as shadow Justice Minister, I have focused on the experience of victims in all different elements of the system, including the effect that long delays can have on them. Looking at the list of factors in the Bill, I am interested in what is not included. It is striking that, in the statutory list, there is no explicit reference to the interests of natural justice for the defendant. That omission matters. In earlier debates, we have been clear that these questions are, in part, about weighing exercises—balancing different factors—and that there are, in reality, more and less fair ways of doing things.”
“It seeks not to remove judicial discretion entirely or create an inflexible system, but to ensure that, where Parliament has set out the conditions for revocation, those conditions have a clear and meaningful effect. If the basis for removing the jury no longer exists, that should carry real weight in the decision that follows. Otherwise, we are in danger of creating a framework in which the justification for removing the jury and the decision to keep the jury become disconnected. Amendment 48 relates to the factors that a court must consider when deciding whether to revoke a judge-only trial order. The Bill sets out a number of considerations, including delay, the interests of victims and the impact on court business. Those are clearly important issues.”
“The Committee is entitled to ask, “What weight are we really giving to those original criteria?” In earlier debates, I made the point that courts will look at the legislation, and indeed our debates, to understand what Parliament intends. If we leave this question too open, it is not clear what guidance the courts are expected to follow in practice. If a defendant is told that their case is no longer sufficiently complex to justify a judge-only trial, but that it will nevertheless continue without a jury because it is considered not appropriate to change it, the basis of that decision will not be clear to them. This amendment is relatively modest but important.”
“Judicial discretion in itself is not a problem, but when Parliament sets out a structured framework with specific conditions, it is important that those conditions actually do something and have a clear consequence. Otherwise, we risk creating a system in which the criteria exist on paper, but the outcome is ultimately determined by a broader and less clearly defined set of judgments, and that is precisely the concern here. We are told that if a case is sufficiently complex or lengthy, it may be tried without a jury, but we are also told that if it is no longer sufficiently complex or lengthy, the court may nevertheless decide that it is still not appropriate to return it to a jury.”
“Is the expectation that the case should ordinarily return to a jury or that, once the decision has been made, it should remain judge-only unless something else actively pushes it back? The Bill does not answer that question, and that matters because, throughout our debates, I have tried to emphasise that it is about not just what is written in the Bill, but how its provisions will operate day to day in real cases. As I set out in earlier debates, we have a whole range of factors here, and many of them must be weighed rather than applied as straightforward rules. That inevitably leaves a significant role for judicial interpretation.”
“The Bill sets out conditions under which a judge-only trial order may be revoked, including where the case is no longer sufficiently complex or lengthy. That reflects the Government’s central argument that a jury trial is displaced only because certain features of the case justify it. However, the Bill then provides that, even when those conditions are met, the court may none the less decide not to revoke the order if it considers that “it would not be appropriate to do so”. I want to be clear about what that means in practice. If the justification for removing the jury is complexity or length, what is the position when that justification falls away? What is the court expected to do at that point?”
“That is important context for these amendments; if there is uncertainty about how the system will operate and what it will deliver, it becomes even more important that the framework we are putting in place is clear on how decisions are to be made and what factors will be taken into account. Throughout our discussions, I have also tried to focus on how the provisions will operate and what they will mean for people going through the system, particularly those who are not legally represented and who may find it difficult to navigate more complex procedures. The amendments are aimed at those practical questions. Amendment 50 relates to a point that is fundamental to how the framework will operate in practice.”
“In earlier sittings, I spent some time testing the basis on which the Government are asking the Committee to accept the changes proposed in the Bill, particularly in relation to the claimed benefits and how the system will work in practice. That is particularly relevant in the context of clause 4, where the justification for removing jury trials rests on the assessment of complexity and length, and therefore on how those judgments are made and revisited in practice. During evidence, I asked Sir Brian Leveson about the modelling underpinning the proposals. His report points to the need for further modelling, but when that modelling was discussed, it was clear that there is uncertainty about the figures and what the impact will be.”
“If we do not make the process fairer, there is a greater likelihood that defendants who experience failure to reallocate when the circumstances change—who sit there knowing that, if they had been in those circumstances at the outset of the trial, they would have had access to a jury trial—will be encouraged to appeal, post conviction, against the decision not to allocate them to a jury trial. Therefore, again, on the Government’s own test in relation to efficiency, there is a benefit to having a more effective and more balanced test for reallocation during trials. On that basis, we will push our amendments to a vote. Question put, That the amendment be made.”
“To reiterate, as in clause 3, we risk creating an unfair dual standard for defendants. The Government accept that such defendants should have rights to a jury trial, but they will potentially be denied one unnecessarily because of the circumstances changing throughout their trial, rather than at the outset. Can we create two identical legal tests for the outset versus in the trial? No, but we can certainly make a better effort than we have. This issue ties back into the question of appeals.”
“That respects the position of defendants who are already part way through the process, avoids the fairness concerns that arise from changing the framework mid-stream, and provides greater clarity about how the system will operate. Given the nature of the change being made, that is a distinction that I think the Committee should take seriously. This is a question about how changes to the system are applied in practice. The amendment is intended to provide clarity about that and to ensure that the framework is applied consistently to cases moving forward, but not retrospectively.”
“On fairness, it is difficult to justify changing the basis on which a case should be tried after it has already progressed through the system. On practicality, it is not clear that retrospective application will achieve the objectives that the Government have set out—particularly if it introduces additional complexity. In debates on earlier clauses, I also made the point that retrospective measures require a particularly strong justification. We previously talked about the guidance to the House and how stringent those tests are. We have heard an unconvincing case, in my view, that such a justification exists here. The amendment therefore takes a straightforward and proportionate approach. It would ensure that the new regime applies only prospectively to cases entering the system after the change, rather than to those already under way.”
“There is also a broader question of how such changes will operate in practice. Applying a new regime to cases already in the system introduces an additional layer of complexity. It raises questions about how existing cases should be treated, how decisions already taken are to be revisited and how the courts should manage that situation practically. We have already heard concerns that this could lead to additional steps in the process, including further consideration of allocation and, potentially, challenge. That has implications for the efficiency of the system. If all the cases currently sat in the backlog to which this applies are subject to a further additional hearing in addition to the new cases coming in, that will create a burden on the courts.”
“It follows that changing the mode of trial after a case has already entered the system is not simply a question of procedure, but a change that affects how the case is determined. There is also a practical dimension to this. I have referred to the position of defendants who may have made decisions in expectation of a jury trial. That may affect whether they elect a particular route, how they prepare the defence and how they approach the proceedings as a whole. It has also been pointed out that defendants awaiting trial may be doing so on remand, expecting that their case will be heard in a particular way. Had they known that the framework would change, they may have taken different decisions at an earlier stage. That illustrates that this is not simply an abstract concern; it has real consequences for individuals.”
“To change the basis on which a case is to be tried part way through proceedings is not simply a technical or procedural adjustment; it alters the ground beneath the defendant’s feet, and that point goes directly to fairness. The Government may argue that this is simply a procedural change, and that the case remains in the Crown court with the same offences and the same sentencing powers, but that does not fully address the issue. We have already discussed the meaningful distinction between a trial before a jury and a trial before a judge sitting alone. The Minister has accepted that there is “something special” about a jury trial. If that is the case, removing it cannot be treated as a neutral step.”
“We have already considered this issue in debates on earlier clauses, where I raised concerns about how changes to the procedural framework affect people who are already part way through the process. Defendants do not approach their case in a vacuum. They make decisions at different stages about how to approach it, how to prepare and how to engage with the system, based on the entire framework that applies to them at the time. In this context, that includes the expectation that their case will be heard by a jury. Where a defendant has proceeded on that basis and the case has progressed through the system with that understanding, it is not a small matter to change that position part way through.”
“I beg to move amendment 49, in clause 4, page 13, line 30, leave out “trial beginning on or” and insert “cases whose first hearing in the magistrates’ court takes place”. This amendment prevents the provisions in section 4 coming into effect retrospectively. We previously discussed the issue of retrospectivity in clause 3, and the exact same questions arise here. As drafted, the Bill provides that the new regime applies to trials listed to begin after a specified day, regardless of when earlier stages in the case have taken place. Subsection (6) makes it clear that this applies regardless of when the preparatory hearing was ordered, for example. That means that cases already in the system may be brought into the new regime before they are heard.”
“The only point I would add is that, as the Minister has accepted, this is a relatively small number of cases, so the test of what is justifiable is actually disproportionately weighted against the Minister in these cases, in comparison with the earlier cases on clause 3. People’s rights and expectations remain the same, and from their perspective will be undermined by these measures, yet the benefit that the Government will actually secure from them is relatively minor, as the Minister accepts. I refer to the fact that 11% of Crown courts are sat empty today, and for a very minimal gain we are putting forward measures that make it difficult for people to exercise their rights in the legal system in a fair and reasonable way. On that basis, we will press the amendment to a Division. Question put, That the amendment be made.”
“However, this fails to take into account that, without the requirement to simplify charges and evidence, this is likely to encourage increased charging by the prosecution and increased applications for more complex evidence to be presented to judges.” While judges are experts in the law and legal matters, there is nothing at all to say that they are any more or less expert in cryptocurrency or complex financial matters than a member of a jury. In total, the society continues: “This will thereby increase the time spent in pre-trial hearings and evidence presentation, as well as the length of and time to produce written judgments.” In total, this will thereby increase the time spent in pre-trial hearings and evidence presentation, as well as the length of time to produce written judgments.”
“It fails to recognise that juries regularly include individuals with professional expertise, financial literacy and analytical capabilities, and that issues of intent and dishonesty are familiar and well understood by the jury.” The society states that we should also note “that the cases that have been preserved for jury trial under the Bill are also likely to include complex expert evidence (such as forensic medical or science-based expert evidence or statistical analysis), which undermines the argument that complex trials should be left to a judge alone. The hypothesis that judge-only trials are more efficient also relies on the assumption that time will be saved by counsel not having to simplify evidence when presenting to a judge rather than a jury.”
“Juries have been involved in many hundreds of fraud trials, following the evidence and reaching rational decisions. The Leveson Review noted that in the Jubilee Line case (one of the longest running in British legal history and one which pre-dated many of the changes that have been introduced to help improve the jury’s understanding), jurors reported ‘a very good understanding of the evidence’, with ‘some commenting that it was not all that difficult’. More recently, in R v Hayes & Palombo , the Supreme Court opined that a properly directed jury would have no problem assessing dishonesty in the context of a complex financial service-related case. The assumption that juries cannot cope with complexity is unproven and patronising.”
“I draw the Committee’s attention to the evidence provided by the City of London Law Society, which points out: “The government’s rationale for judge-only trials in ‘complex or lengthy cases’ rests on two assumptions: that juries struggle to understand complex fraud cases, and that judge-only trials will be significantly more efficient. Neither assumption is adequately supported by evidence. There is substantial research and practical experience demonstrating that juries, when properly directed and assisted with appropriate case management, are capable of understanding and deciding complex fraud cases. Modern trial techniques have been brought in to address issues that arose in the past, significantly enhancing jury comprehension.”
“For one judge, a case involving intricate cryptocurrency ledgers might seem manageable for a jury, but for another, it may seem impenetrable. By making the right to a jury trial contingent on a judge’s personal assessment of what a typical citizen can understand, we introduce an element of judicial lottery. Furthermore, fraud is fundamentally about honesty and dishonesty, which are concepts that ordinary people are well placed to judge. When we professionalise the verdict in fraud causes, we move away from a community-based standard of morality towards a technical, legalistic one that may lack the public’s moral buy-in.”
“Although we all acknowledge the severity of the backlog, we must ask whether these specific measures are evidence-based or merely an attempt to appear tough on administrative delays at the expense of the right to trial by one’s peers. The Bill will allow a judge to order a trial to be conducted without a jury if they are satisfied that the complexity or length of that trial would make it a heavy burden on a jury. As the hon. Member for Brighton Pavilion pointed out, it would be good to get clarity on whether a judge may make such a determination on the basis of complexity or of length individually, or whether they must do so on the basis of both complexity and length—that was a fair question. Complexity is highly subjective.”
“I rise to speak in opposition to clause 4 and in support of amendment 51 in my name. I remind the Committee that this is not a new debate. As the Minister touched on, it is an idea that has been postponed, debated and largely rejected several times over the last few decades. Each time, the conclusion has been that the jury is not the problem in fraud cases, but a vital component of the solution. The Government’s current justification rests on two pillars: that fraud causes are too complex for ordinary citizens, and that removing the jury will create significant efficiencies to help clear the record-breaking court backlog.”
“If the schedule said complex and lengthy fraud cases, then the Minister might be able to argue that it is constrained, but the schedule is just “Trial on indictment without a jury: complex or lengthy cases”. It actually opens the door to any number of types of offence being added purely because they are complex and lengthy. I think of, for example, the Lucy Letby trial, which was clearly complex and lengthy, but something that clearly needed to have a jury in terms of public confidence. That could end up included by schedule 1.”
“As I have talked about in earlier debates, uniquely in this situation we already know what the Lord Chancellor wanted to do. From leaks, we know that five years was the test, in terms of these proposals. The Opposition are being fair in suggesting that this is potentially the thin end of the wedge.”
“I talked before about how judges will look to what Ministers have said around a measure in trying to interpret it, so if a judge is not clear what was meant by this, and pulls up Hansard to read what the Minister has said, surely they will take from the fact that the Minister has talked about the disruption to a juror’s life that they should have that as the test. What is disruptive to one person’s life is very different from what is disruptive to another’s.”
“Currently, when a person sits on a jury, it is understood that, outside of the most extreme circumstances, they will be there for as long as the case takes. However, if the public get the sense that they can debate what asks are reasonable or unreasonable, I would not be surprised if jury members, in trials that go on a little bit, start sending notes to the judge to complain. They might say, “This has gone on for a week, and I didn’t think I’d be here for that long. I understand that if a trial goes on for too long, it shouldn’t be heard by a jury. This is going on too long. Judge, will you look at that?” That will open a whole can of worms about something that at the minute is extremely constricted in people’s minds.”
“My hon. Friend the Member for Reigate has given one example, but another, with which I expect people will be familiar, is the LIBOR trials. They were very complicated and sophisticated, and the appeals were successful because of a judge. It was the judge’s misdirection to the jury that led to the LIBOR trials becoming another example of cases collapsing. If anything, the evidence shows that it is the judges who are the issue here, not the juries.”
“We are looking into the details of the Bill here, but goodness knows what will happen when a Minister has to defend these proposals in the Lords, with the expertise and experience of its Members, who include retired judges. Given clause 4’s lack of appeal, its illogical approach to how fraud and non-fraud offences interact, the minimal savings, the flimsy evidence and the lack of definition, which we have covered extensively, the Minister in the other place will have a very difficult time if the Government do not start being a bit more open to the non-wrecking but sensible amendments that Opposition Members put forward. Question put, That the clause stand part of the Bill.”
“I think some apprentices I have met at IT firms in my constituency might have a better understanding of the issues relating to cyber-crime than some of our judges. The Lib Dem spokesperson, the hon. Member for Chichester, made it clear that it is not a supposition, nor does it take extensive reasoning, to suggest that future Governments will be able to make use of these powers in exactly the way that we have described. That is not a matter for debate; it is about the statutory framework that has been put in place, which will definitely be available to future Governments on the basis of the maximalist, expansive approach that this Government have chosen. My hon. Friend the Member for Isle of Wight East has explained how other jurisdictions have done a better job.”
“I just want to pick up on some points. The point about the scale of the issue was well made by my hon. Friend the Member for Reigate, who pointed to 200 sitting days. She highlighted the criticism from others suggesting that the list of offences was “the work of a moment”, which is probably a fair description of what is going on. As we have heard, trying to understand what “complex and lengthy” means has proved difficult. A telling point was the Minister’s insistence that it will be obvious to judges. Other jurisdictions have set out a minimum in legislation, but as the person legislating she is not able or willing to give a sense of how long she has in mind. On her suggestion that judges are better placed to understand this stuff, I say with no disrespect that over 70% of judges are aged over 50.”
“I beg to move amendment 52, in clause 5, page 14, line 36, leave out subsection (5) and insert— “(5) The judgment must be given at the time of conviction, except where an adjournment is necessary for preparing— (a) pre-sentence reports, (b) psychiatric or medical reports, (c) victim personal statements, or (d) further legal advice relating to sentencing.” This amendment would ensure that judgments are handed down on conviction in all but the circumstances covered by the amendment.”
“They cannot strip away, to a great extent, the historical right to a jury trial in the name of streamlining the system and allow that system to grind to a halt while a judge reserves a decision for days, weeks or potentially even months.”
“However, as some of the evidence suggests, very good reasons to delay should be defined strictly and should not include a busy schedule or a desire to write at another time. A very good reason should be limited to genuinely unforeseen situations. Indeed, as amendment 52 provides: “The judgment must be given at the time of conviction, except where an adjournment is necessary” for specific and well understood purposes, such as preparing medical or psychiatric evaluation reports, victim personal statements that were not available or that they sought to amend, or further legal submissions. However, the substance of why must be given when “guilty” or “not guilty” is uttered. The Government cannot have it both ways.”
“If we make a decision and then come back to it at a later date, we have an inherent human failing of tending to dwell on, have our attention drawn to and be more mindful of things that reinforce our decision, rather than things that take away from it. Therefore, immediate reasoning ensures that judges are ruling on the evidence as it was heard. If the Government claim bench trials are superior because they are reason-based, those reasons must be robust enough to be stated out loud at the moment of verdict, forcing a level of intellectual honesty that is the only acceptable substitute for the collective common sense of a jury. Critics may argue that some cases are too complex for an immediate ruling.”
“The requirement for immediacy is also a vital safeguard of the integrity of the law. There is potentially a subtle temptation for a judge who announces an initial verdict on a Monday, but writes the reasons for it on a Friday, to reverse engineer the logic of their original conclusions, even if inadvertently. Instead of the reasons leading the verdict, the verdict begins to dictate the reasons. The judge may subconsciously highlight only the facts that make their decision appeal-proof, rather than providing a raw, honest account of why they believed one witness over another. Members may well be familiar with the idea of confirmation bias; it is something that we are all affected by.”
“We are told that judges are professional triers of fact and that, precisely because of that expertise, we should be able to expect a system that reflects it. A jury of 12 people must be taught the law from scratch, whereas a judge, who already knows the law, should be taking structured notes and filtering and identifying relevant and irrelevant information in real time. By the time closing arguments are finished, a professional judge has been living with the facts and the law for days or weeks. They are in the best possible position to explain their logic at that moment. When a judge delays a verdict and the reasons for it, they are forced into double-handling the evidence, re-reading transcripts and notes to recapture their original thoughts. That is not efficiency—it is a waste of judicial resources.”