Law: Are we being deceived by the media view of fraud cases?

Our Learned Friend
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The Independent Culture
SERIOUS FRAUD makes headlines. Large sums are involved. City institutions whose functions remain a mystery to most are brought low. Men in suits are dragged from their smart addresses, humiliated, and put on trial. And then, horror of horrors, some are acquitted.

Are they acquitted in larger numbers than other accused? No.

Why, then, this preoccupation with how serious fraud is tried? The Home Office has invited the public's view on whether the system for trying serious and complex fraud should be changed, and the accountancy firm KPMG has responded by echoing past calls for an end to jury trials in such cases.

But all this interest cannot have arisen because we put serious fraud high on the penal agenda. Only one, or possibly two, of our 43 police forces, place fraud high on their list. There is no national fraud squad, there are no regional fraud squads.

Often fraud goes unreported because companies do not wish to air their dirty linen in public. Losses are recovered civilly, or not at all. There is a very limited duty to report fraud, even by professionals. Those tasked with investigating fraud: the police, customs, the revenue, the Department of Trade and Industry are all under-resourced.

The Serious Fraud Office, that unjustly and often maligned agency, is charged with investigating a tiny proportion of reported cases. Its success rate is impressive, contrary to the message given by the media.

Twelve years after Lord Roskill's Committee reported on fraud, and led to the setting up of the SFO, we are no wiser about how to tackle what is a widespread national and international problem.

We are certainly no better informed now than we were then about how juries in fraud trails go about their work. Then, as now, Parliament had forbidden any research on live juries. There is some evidence from the United States, some experimental results with ghost juries, but we know, really know, only the following:

1.Juries are chosen at random (they are for all cases).

2.Jurors have no training (they do not for any trial), even those involving detailed, scientific or medical evidence.

3.Juries are directed on law and helped on fact by Judges whose expertise in the fraud area varies widely.

4.They listen to arguments from barristers whose advocacy, intellectual skills, and background knowledge, again, vary enor- mously.

5. They deliver verdicts which sometimes fail to coincide with the public hysteria whipped up by the tabloid press.

6.When they do acquit in headline cases, there is an immediate call for their abolition.

It is tempting to give earnest consideration to those who call for only a limited scrapping of jury trials. Just those few dozen cases a year which are particularly difficult. The individual right to trial by one's peers is only being sacrificed for a few for committing some serious, but seemingly impenetrable, crime.

In these cases we are told only a judge with two hand-picked assessors will be able to master the complex facts, the unfamiliar financial or commercial setting and reach a verdict on the conduct and the accused's state of mind.

I remain unconvinced. Until those who advocate change can demonstrate the merit of their case with cogent evidence, the suspicion must remain that juries are considered to be:

1. Inconvenient, because their verdicts are unpredictable; in other words, they may acquit.

2. Expensive - trials with juries are longer. Unproven.

3. Juries are drawn from the stupid classes and are thus unable to understand complex cases. Patronising and unproven.

4. Juries generally are seen by authority as an anachronism in the late 20th century. If their abolition can be successfully and quietly brought about for unpopular white-collar crime, then in time they can be made to disappear altogether.

Would that be a bad thing? No one knows, and that is the problem. Surely we must find out whether juries really are the lamp by which liberty is illuminated (to misquote Lord Devlin) otherwise it will be a strange paradox that the Government that is legislating for a Bill of Rights, should contemplate interfering with what many regard to be the right to a fair trial for those accused of white-collar crime.

There is a real risk that in the years to come, men in suits will become one of the oppressed minorities and the miscarriage of justice statistics of the future.

t The author is a senior partner at Peters&Peters

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