Commentary: Streamlining fraud trials

Abroad consensus seems to be emerging on the reforms necessary to improve the conduct of long fraud trials. Trial by jury should be retained but numerous less fundamental changes can be made to reduce the number and the length of such cases.

This is the conclusion of the Bar Council working party on the subject, chaired by Jeremy Roberts QC. Despite legitimate concerns about the ability of jurors to understand complex fraud cases, four of its six authors believe that juries generally return verdicts that are sensible and just, and that the system provides an important constitutional safeguard in limiting the power of the Establishment. Interestingly, the dissenting minority includes Alan Suckling QC, who ably prosecuted for the Serious Fraud Office in the Barlow Clowes trial, the best-run of the big three cases (Guinness and Blue Arrow being the other two).

To reduce the number of fraud prosecutions handled by the courts, the Roberts report sensibly recommends the adoption of plea bargaining and greater use of professional disciplinary procedures. As Asil Nadir and most of the SFO's other targets know to their cost, more effort is needed to simplify indictments and to clarify the issues at the heart of allegations.

The report supports calls for early disclosure of the defendant's case, with an early opportunity for defence counsel to address the jury. This could save a great deal of time by removing the need for defendants to make their case through the cross-examination of prosecution witnesses. Juries could be greatly helped by giving them brief summaries of key statements and undisputed evidence. It is absurd that jurors should be expected to judge fraud cases without many of the facilities available to the lawyers.

The report also backs extending the circumstances in which a company may be held criminally liable for the actions of its officers. The working party points out that it is typically only the companies that are able to pay worthwhile compensation to fraud victims.

The report says little on the right to silence. It notes that recent legislation has eroded the right against self-incrimination - for example, by giving extensive powers to SFO and Department of Trade and Industry investigators. It calls for rationalisation of these piecemeal changes.

This topic deserves wider debate. Why is it fundamentally objectionable for defendants to be required to give an account of their actions? With proper safeguards, a requirement to provide answers to reasonable questions should enable prosecutors to get to the truth without posing a threat to civil liberties. These issues extend far beyond serious fraud.