The recent defeat of the Government’s proposals to restrict the right to jury trial by the House of Lords raises the question of what its next move will be in relation to the use of juries in serious fraud cases.
The Home Office published a consultation document in February 1998, but there has been little said by the Government about the issue since – the Home Office could only say that the Government was still considering the options.
The abolition of jury trials in serious fraud cases is just one of several issues that could change the legal and procedural landscape where offences of fraud are concerned. European Union (EU) initiatives could have far more dramatic effects on the types of fraud cases prosecuted in this country and the powers available to investigators and prosecutors. Parliament has already extended the jurisdiction of our courts to try offences that would previously have been considered extra-territorial and not justiciable here.
Juries in serious fraud cases
In 1985 Lord Roskill’s now well-thumbed Fraud Trials Committee Report was published. As a result of that report, the Serious Fraud Office (SFO) was set up in 1987 and, along with it came compulsory powers for the obtaining of documents and the questioning of suspects and witnesses, as well as major changes to the criminal trial process in serious fraud cases. Roskill also proposed the abolition of the jury system for certain cases of serious fraud, which were to be tried by a fraud trials tribunal comprising a judge and two lay assessors.
There followed many well-known trials in the 1990s including Blue Arrow, Barlow Clowes, Maxwell and BCCI. Such cases severely tested the relatively new Roskill procedure for the management of such long and complex trials. Judges, juries, lawyers and the entire court system were placed under enormous pressure. Public concern was expressed at the length and cost of these trials. The fact that some ended in acquittal gave rise to further criticism and, in some cases, to unjustified criticism of the jury’s decisions.
As a result, the Home Office published its consultation document in February 1998 entitled ‘Juries in Serious Fraud Trials’. It set out the arguments both for and against jury trial in serious fraud cases and examined the different alternative methods of trial: special juries; trial by a single judge or a panel of judges; a Roskill- style tribunal; and trial by a single judge with a jury for key decisions.
The director of the SFO is in favour of abolishing juries in cases that are so large and complex that they cannot be dealt with in a single trial. Others vehemently oppose the abolition on the grounds that the alternatives would not produce a fairer system of justice, would not save court time and might cost more than the current system. There has still been no hard evidence provided that any of the alternatives to jury trial would save time or money. Civil trials on similar issues can also last for months.
The discipline of having to explain and present a complex case to a jury has its advantages because the prosecutor is forced to cut down the amount of material relied on and to focus on the charges. Even complex cases should be presented in such a way that the public can understand the crime alleged and be involved, through the jury, in the decision as to guilt or innocence. To do away with juries and leave the decision to judges and a few lay people excludes the public from this process.
There will also be serious human rights issues with a new system, for example, if lay tribunal members are not selected and retained by a process that maintains their impartiality in compliance with Article 6 of the European Convention on Human Rights.
