Let juries be the judge on fraud

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The Independent Online
Hot on the heels of last week's acquittals in the Maxwell case, the Government has announced that it intends to review jury trials in fraud cases. Many may consider this to be ill-timed and ill-judged. It is generally agreed that the Serious Fraud Office was right to bring charges. The allegations were simplified and properly presented. Counsel for the prosecution and the defence did their jobs well, and the judge was of the highest calibre. The key questions for the jury in this case, as in so many other fraud trials, were whether there was a criminal agreement and whether the defendants were dishonest. Such issues are pre-eminently for a jury of ordinary citizens to decide.

The fact that the Maxwell jury, properly directed, ignored unprecedented and emotive pre-trial publicity and acquitted each of the defendants is a vindication of our trial system. The unfortunate timing of this proposed review suggests an underlying dissatisfaction with the verdict.

Although the principle of jury trial is firmly established under the law, it has long been attacked and eroded on grounds of cost and expediency. In the past 20 years many offences that entitled a defendant to jury trial - eg, common assault, driving while disqualified - can now be tried only by magistrates. In Northern Ireland, the Diplock courts, where judges sit without juries, were set up in 1974 as a temporary measure to combat terrorist crime; yet until recently they were still used to try a wide range of serious non-terrorist offences.

In 1985, the Roskill committee recommended removing complex fraud from juries and substituting a fraud trials tribunal, consisting of a judge and two lay members chosen by the Lord Chancellor for their knowledge of financial matters. "Experts" from the banks and accounting bodies would decide on simple issues such as honesty and dishonesty. There is something of an Orwellian flavour about government-appointed panels convicting defendants and sentencing them to substantial terms of imprisonment. If the same panels were to acquit, it could lead to allegations of rigging.

It is right that the trial system should be subjected to constant assessment, modernisation and improvement. In 1992, a Bar working party under Jeremy Roberts QC suggested, among other things, the setting up of special fraud trial centres, presided over by trained judges. It concluded that as long as cases were kept manageable and issues properly presented, the jury system should be maintained. It looked at disciplinary proceedings as an alternative to criminal prosecution, with powers to direct financial penalties and compensate those who have suffered loss, and at civil fraud proceedings where the emphasis is on compensation for the victims and punitive damages for dishonesty. None of its recommendations has so far been implemented.

What is important is that the Maxwell trial should not be used to justify the abolition or modification of juries in such cases. If commercial fraud continues to be dealt with as a serious criminal offence, guilt or innocence must be determined by ordinary members of the public.

The writer is chairman of the public affairs committee of the Bar Council.