The Independent Review of the Criminal Courts, chaired by Sir Brian Leveson, published part 1 of its report on 9 July 2025. The review considered two main themes:
In part 1 of its report, the review concluded, quite simply, that criminal justice is in crisis, with 77,000 outstanding cases in the Crown Court and cases already being listed for trial in 2029. With the courts at breaking point, in this article we consider the impact of this crisis on criminal regulatory enforcement.
Sir Brian Leveson highlights in his report that Halsbury’s Statutes of England and Wales has four volumes devoted to criminal laws which together run to over 5,000 pages and it's accepted that this probably doesn’t including all regulatory laws with criminal liability.
Like all criminal defendants, it has always been considered a right of a criminal defendant facing an either way regulatory offence to elect trial by jury in the Crown Court. This includes companies and individuals charged with breaches of environment, product and health and safety laws.
In the face of a system which is undoubtedly at breaking point, Sir Brian Leveson has as part of a suite of recommendations, proposed that some criminal trials in the Crown Court proceed before a judge alone. In particular, it's suggested that cases involving complex and technical expert evidence, with environmental cases being given as an example, risk juries being unable to understand the nature of the evidence before them.
| “In some cases, the time taken and cost of experts necessary to present the material in such a way that the judge can be confident the jury has understood might be substantial. I expect the trial judge is best placed to assess whether a jury is likely to be capable of understanding evidence and how much expert opinion evidence would be required. By way of example, there may be a prosecution for offences turning on technical environmental law, regulations or intellectual property concepts which would take substantial time to explain to a jury, but which should be readily grasped by an appropriately selected judge of the Crown Court, which would include a High Court Judge. This is no more than an extension of the provision for serious fraud to be tried by judge alone to other cases which have comparable complexity albeit in different fields." – Sir Brian Leveson at paragraph 110 |
Another finding of the report is the low uptake of defendants seeking a Goodyear indication, by which a defendant can request a judge give an indication of likely sentence if they were to plead guilty. Sir Brian Leveson finds that this tool is not being used to its full potential and in fact proposed a form of extension whereby 'there should be an expectation set on every judge, at the PTPH [Plea and Trial Preparation Hearing], to take a more proactive approach and routinely to express in open court the willingness to give Goodyear indications, irrespective of whether a request has been made by the defence for an indication', i.e. without needing wait for a potentially reluctant defendant to seek such an indication. It's felt that this might result in a greater number of cases returning guilty pleas and thereby avoiding lengthy trials.
There are two key recommendations which it's anticipated will significantly impact on how regulatory cases will progress in the criminal courts. The first is the introduction of restrictions on some offences of the right to elect in the magistrates’ court to be committed to the Crown Court for trial, thereby removing the option of trial by jury. This is based on Sir Brian Leveson’s view that 'there exists no such constitutional or common law right to a trial by jury'.
The second is the is the creation of a Crown Court Bench Division (CCBD), where certain cases committed to the Crown Court would be tried by a judge and two magistrates. The report cites certain regulatory offences which would be impacted by these recommendations include money laundering, health and safety, modern slavery and certain planning offences. However, the list appears far from exhaustive and if such reforms were introduced, it would seem that far more regulatory offences would also be captured by these new provisions.
In some areas of regulatory enforcement, there has been for some time the recognition that not all enforcement needs to be by way of criminal prosecution and new governments have incrementally increased the enforcement powers available to regulators, including the introduction of civil and fixed penalty fines for certain breaches. However, for those alleged breaches which do result in a decision to prosecute, the removal of the assumption that a defendant could elect for a Crown Court jury trial represent a very significant shift.
It remains to be seen how the government will take these recommendations forwards and what stakeholder engagement may take place prior to any legislation being introduced. If you would like to discuss a regulatory compliance investigation or breach please contact Ian Manners, partner and head of business risk and regulation.
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