Law Report: Unnecessarily long indictment led to unmanageable trial: Regina v Cohen and others - Court of Appeal (Criminal Division) (Lord Justice Mann, Mr Justice Ognall and Mr Justice Buckley), 28 July 1992

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Prosecuting authorities should not overload indictments in a jury trial with inessential particulars, as to do so might result in an unmanageably lengthy and complex trial. The trial judge, who has the ultimate responsibility of ensuring that the indictment is one on which a manageable trial is possible, should at an early stage robustly use his power to sever an indictment in order to secure a manageable and fair trial.

The Court of Appeal gave reasons for quashing on 16 July the four appellants' convictions of conspiracy to defraud.

The appellants, Jonathan Cohen, Philip Gibbs, David Reed and Nicholas Wells, were involved the takeover of Manpower Inc by Blue Arrow plc. They were alleged to have rigged the market to enable the rights issue of Blue Arrow shares to be completed. After dismissal and preparatory hearings which lasted 50 days, Mr Justice McKinnon decided that the four appellants and six others should face an indictment of 19 particulars covering the period of 22 September 1987 to 20 December 1987. He rejected defence proposals that to secure a manageable trial, particulars relating to taking in the share placing and the concealment of holdings should be excluded, and the period should be limited to 28 and 29 September, when it was alleged that an agreement to effect a late take-up of shares was made.

The trial started on 11 February 1991, and the jury retired on 11 February 1992, the 184th day. The prosecution case, which included 94 witnesses, lasted until 30 July 1991, when the jury left court until 14 October. Submissions of no case to answer or that the trial had become so unmanageable that its continuance would be an abuse of process were made. The submissions of abuse were rejected.

The defence evidence lasted from 14 October to 21 November. Closing speeches concluded on 17 December. On 19 December the court adjourned until 14 January. Submissions were made and the jury returned on 6 February after an absence, apart from one day, of 51 days.

Mr Justice McKinnon rejected defence submissions for directed acquittals and proceeded with a summing-up limited to the late take-up only. He amended the indictment by excluding all particulars other than those relating to the late take-up. He referred to only 23 of the prosecution witnesses and to only 68 pages out of the 956 pages of exhibits. The summing-up took three days.

Jeremy Roberts QC and David Perry (Richards Butler); Anthony Hooper QC and Simon Mehigan (Titmuss Sainer & Webb); Vivian Robinson QC and Alexander Cameron (Peters & Peters); Richard Du Cann QC and Michael Bromley-Martin (Macfarlanes) for the appellants; Nicholas Purnell QC, Jonathan Harvie QC, Michael Bowes and Napier Miles (SFO) for the Crown.

LORD JUSTICE MANN, giving the judgment of the court, said that the defendants were not in any way at fault in contributing to the length of the proceedings. The basis on which the judge summed up was one fundamentally different from the basis on which counsel addressed the jury, and a defendant was entitled to have his counsel address the jury on the case as it was to be left to them. There was an even more fundamental objection to the course taken by the judge. The jury were left with a large part of the evidence which had an undetermined and questionable relevance to the one issue which was isolated for their decision.

By January 1992, the only course open to the judge was to discharge the jury. The awesome time-scale of the trial, the multiplicity of issues, the distance between evidence, speeches and retirement and the two periods of absence by the jury (amounting to 126 days) combined to destroy a basic assumption. That assumption was that a jury determined guilt or innocence upon evidence which they were able both to comprehend and remember, and upon which they had been addressed at a time when the parties could reasonably expect the speeches to make an impression upon the deliberation.

The length and complexity of the trial were directly attributable to the length and complexity of the indictment. The complexity of the indictment was proved to be unnecessary, for there was a central issue. The summing-up demonstrated that the appellants could have been tried manageably and fairly. This was not an example of the unprosecutable allegation.

An indictment charging a conspiracy must give particulars but they must not be more than was necessary having regard to the limitations imposed by a jury trial. Restraint must be exercised by the prosecution in the adduction of evidence. A lack of restraint could be corrected by the trial judge expressing his view that the evidence, albeit relevant, was inessential and had a volume and complexity which would threaten to prejudice a manageable and fair trial.

The prosecution had a heavy responsibility not to overload the indictment. The trial judge had the ultimate responsibility of ensuring that the indictment was one on which a manageable trial was possible and to achieve that end he could use his power of severance. The problem presented by the overloaded indictment could be solved only by a robust and early use of the judge's power of severance. Judges must not be reluctant to exercise their power to secure a manageable and therefore fair trial but would seldom have occasion to do so if the prosecuting authorities framed indictments which had due regard to the limitations of a jury trial.

The appeals would be allowed on the ground that the decision to sum up only in regard to the late take-up constituted a material irregularity in the course of the trial.