Hung on the issue of juries

The Maxwell Aftermath : Legal opinion is divided over whether complex fraud trials should be heard by a panel. Grania Langdon-Down reports
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Lord Justice Phillips, who presided over the Maxwell trial, went out of his way to defend the role of juries in serious fraud cases. But elsewhere matters are not so clear. There is growing support for the abolition of juries in complex fraud trials, but seeing it through Parliament could prove politically difficult today, according to Lord Roskill.

The 84-year-old retired law lord headed a committee on fraud trials that in 1986 recommended juries be replaced by a tribunal, such as a judge sitting with lay assessors. The government rejected this, preferring the dissenting opinion attached to the report by Walter Merricks, now a senior official at the Law Society.

Today, even some senior judges who are strongly pro-jury for mainstream criminal cases have come to believe that the "management problems" that juries pose in complex fraud cases are too great. They argue that in order to make a case comprehensible to the jury, the prosecution has to focus on a small part of the picture, which can be misleading. They point to the 1981 Supreme Courts Act, which allows judges alone to hear civil cases involving fraud when the trial "requires prolonged examination of the documents or accounts ... which cannot conveniently be made with a jury".

Lord Roskill said ahead of the Maxwell verdict: "What has happened since 1986 makes our conclusions all the more important because I do not think any of us at that time envisaged cases of the size of Maxwell and BCCI. The government made the wrong decision in not taking up our recommendation. If it had gone ahead straightaway, I think it would have gone through the Lords and Commons because the Thatcher government had such a large majority."

While he believes that there is a growing body of opinion in favour of his committee's recommendation, he feels that it would be harder to achieve now, given John Major's small majority.

The Home Secretary, Michael Howard, has been canvassing opinion about juries among senior legal figures. However, the likely first step would be to amend the 1981 Contempt of Court Act to allow research into jury decision-making, as recommended by the Royal Commission on Criminal Justice in its 1993 report.

Lord Roskill argues that the stress on the right to be tried by your peers is a "cliche". "The vast majority of people in this country who commit minor criminal offences are tried in the magistrates' courts, not by their peers. I do not see why anyone should suggest that a judge and two assessors are likely to be unfair. One of the great advantages is that they would have to give reasons for convicting or acquitting a defendant, which a jury does not have to give. That is a very strong argument in its favour," he says.

In some Commonwealth countries, defendants can elect trial by judge alone, who gives a reasoned judgment at the end, which is then appealable on its merits.

According to some legal experts, the best tribunal would be three judges. Assessors were a "cop-out" and wrong in principle because their role in providing the necessary expertise would be carried out backstage and would go without cross-examination.

Experienced judges doubt that there is much scope for shortening jury trials without radical change. "There isn't much even an interventionist Eric Cantona-style judge can do to shorten these trials," one judge says.

While a judge-alone action might take just as long - two civil trust cases being heard in the High Court have been running for six months and a year respectively - the hearing would be able to cover the whole picture rather than a selected version specially packaged for the jury. This could lead to "one-stop shopping", with the resulting reasoned judgment used not just for criminal sentencing but also as the basis for civil penalties, such as damages, compensation orders and regulatory sanctions, such as professional disqualification.

Another factor that could be introduced is the offer of substantial sentence discounts for guilty pleas. However, some legal experts argue that current sentences are too low for plea-bargaining to work, particularly while defendants believe that they can beat the system when a jury is involved.

Apart from juries, one of the most vexed issues surrounding the management of fraud cases is disclosure, with documents in some cases running into millions. Some judges argue that the Roskill report was killed because judges were not given any teeth to order earlier defence disclosure.

Anthony Scrivener QC, the former Bar Council chairman who led the defence team for the Polly Peck chairman Asil Nadir (before Nadir fled the country), is exasperated at the pressure put on the defence. "The police collect all the documents, leaving the client nothing. The investigators and prosecutors then spend three or four years preparing their case with access to massive resources," he says.

"When they are sure they have got all the documents they want pointing to guilty, the pressure is put on the defence to put in their statement. But it can take months going through all the documents. On occasion, I have had a team working full time, even during the trial, which was still coming up with relevant material right to the end."

Mr Scrivener is also a keen supporter of juries. "Jury trial is essential in any democracy and there is no reason why they cannot grapple with these cases if everyone does their job properly."

His view echoed that of the jury forewoman in the second Guinness trial, who wrote to the Financial Times after the case collapsed in 1992. In a rare insight into the jury room - rigorously protected by the Contempt of Court Act - she stated that the jurors had not found it unduly difficult to understand the material and that they were "disappointed and angry when the trial ended with justice neither done nor seen to be done".

Walter Merricks, now director of professional and legal policy at the Law Society, says that he also remains against the abolition of juries in complex fraud cases until proper research is carried out to see whether or not juries could cope. "Jury trial is a civil right going back 300 years. It should only be changed with clear evidence, not people's hunches that it is all getting a bit difficult," he says.

The difficulty with the Roskill-style tribunal is in defining which type of case would come within its remit. "Lord Roskill and his colleagues on the committee admitted there would have to be a right of appeal against the decision to send a case before a tribunal rather than a jury. My guess is everybody would appeal. This would mean the decision about mode of trial would be taken by the Court of Appeal, which seems a pretty bad start."

However, Mr Merricks is not so sure that the Government's small majority would prevent it trying to push through the abolition of juries. "There is a trigger-happy mood about changing the criminal justice system, even at the risk of messing it up," he says.

'I do not see why a judge and two assessors are likely to be unfair. One great advantage is that they would have to give reasons for acquitting or convicting a defendant'

Lord Roskill

'Jury trial is essential in any democracy. There is no reason why juries cannot grapple with these cases if everyone does their job properly'

Anthony Scrivener QC

'Jury trial is a civil right going back 300 years. It should only be changed with clear evidence, not hunches that it is all getting a bit difficult'

Walter Merricks