New Clause 4
Fraud (Trials Without a Jury) Bill
7:00 pm
Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)
I fear that if the new clause is pressed, we will end up voting on it, because it would alter the criterion for determining an application under section 43. The question would no longer be how the length and complexity of the trial would affect the burden imposed on the jury, but how those factors would affect the safety of the verdict. That would be a significant change, because it has never been the Government’s position that there are doubts aboutthe verdicts returned by juries in serious fraud cases or that trial without a jury is necessary to resolvethem. Rather, our position throughout has been that section 43 is needed for the twin purposes of limiting the burden on the jury in such cases and of enabling justice to be done by exposing in court more fully the alleged criminality. The condition set out in the new clause would render section 43 ineffective.
I have heard arguments advanced that other types of trial can last a very long time, and of course they can. However, there is a particular history in relation to serious and complex fraud cases that does not exist in relation to those other types of case. It is not only that eminent reports such as the Roskill report and the Auld report support our view or that various representations have been made to Governments over time; it is that there has been a series of cases. Reference was made to some of the cases on which we rely. I shall talk about some of them—there are others—in which problems arose, in which there were burdens on juries or in which the full criminality of the case was not able to be exposed. Some of the cases are older; some are more recent.
The first case is R v. Cohen and others—the Blue Arrow case—which was completed back in 1992. The allegation was that, in effect, there was an agreement to rig the market. The case involved complex evidenceon rights issues and the basis on which a takeover by Blue Arrow of another company was structured. Defendants were convicted of conspiracy to defraud and given suspended sentences after a trial that lasted a year. The convictions were subsequently overturned on appeal.
The prosecution had significantly reduced the prosecution case before it came to court; that had already happened in order to get the case before a jury. Even so, the trial judge pruned the case further during the trial, greatly reducing both the scope of the indictment and the complexity of the counts. The trial judge ordered further deletions from the indictment between counsels’ final speeches and the jury’s deliberations, directing the jury not to consider the admissible evidence relating to the deleted particulars. That was held to be a material irregularity by theCourt of Appeal when it subsequently considered the matter.
Additionally, the trial judge severed the case into two trials to make it “manageable” for the jury. That still meant 10 defendants facing trial together. On the burden experienced by the jury, the trial judge, Mr. Justice McKinnon, said that no jury should be asked to cope with what that jury had to endure. Following the appeal, the Court of Appeal said that there was
“a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence.”
It noted that the jury retired with 956 pages of exhibits and such recollections that they might have had of94 prosecution witnesses giving evidence between seven and 11 months earlier and of counsels’ final speeches having been delivered between 59 and 65 days earlier.
The Serious Fraud Office’s view is that the pruning of the case and the trial severance undermined the prosecution’s ability to present a cohesive or coherent case. Measures designed to improve conditions for the jury, such as two periods of extended leave over Christmas and the summer, were said to have helped destroy the basic assumption that a jury determines guilt or innocence on evidence that it is able to comprehend and remember. It is not so much the jury’s comprehension that was in question, but the sheer volume of the evidence.