The collapse of the £60 million Jubilee Line fraud case has sparked calls for juries to be scrapped. But what are the alternatives in complex trials? Grania Langdon-Down investigates

The Jubilee Line corruption case opened in June 2003 with the exotic claim by prosecuting counsel Patrick Upward QC that London Underground had been betrayed ‘for a harlot’s caresses’, ‘a few pieces of silver’, and the ‘brush of a barmaid’s skirt’. Twenty-one months and £60 million later, the trial collapsed as Mr Upward admitted it had lost ‘all momentum… the evidence is no longer a living story’.


In a timely co-incidence, the trial ended on the same day that the Lord Chief Justice Lord Woolf published a 16-page protocol on the control and management of heavy fraud and other complex criminal cases. So how can complex fraud trials be better managed, and should they continue to be heard by juries?


The Jubilee Line case centred on allegations of corrupt deals as the government scrambled to have the £3.5 billion extension ready for the opening of the Millennium Dome. It finally fell apart eight years after the first raids were made by British Transport Police and five years after the seven defendants in the first trial were charged. Six chose to fight the charges. All have been formally cleared. The seventh pleaded guilty to charges connected with the case and is yet to be sentenced.


The furore over the trial prompted the Attorney-General Lord Goldsmith QC to order an urgent inquiry by Stephen Wooler, the chief inspector of the Crown Prosecution Service Inspectorate, because, he said, another such case ‘must never be allowed to happen again’.


Throw in a £14 million legal aid bill for five of the defendants, and it is not surprising that the case has provoked a fierce debate over the future of jury trials for serious frauds. Several jurors, ‘shellshocked’ at finding they had given up nearly two years of their lives for nothing, entered the debate, concerned that the jury would be held to blame. They stressed they had understood the complex issues involved, with all but one arguing that juries should be retained, but with better trial management.


Two years ago, the government tried to legislate to allow applications for serious and complex fraud cases to be heard by a judge sitting alone. However, the Lords rebelled and only allowed the provision to be included as section 43 in the Criminal Justice Act 2003 after the government gave an undertaking that it would not be invoked without an affirmative resolution by both Houses.


Michael O’Kane, a partner with London fraud law firm Peters & Peters, acts for one of the defendants who was to have appeared in one of two subsidiary trials, both of which have also been dropped. ‘This is too much of a hot potato for the government in the run-up to an election. However, they have been consulting widely in the criminal justice system – not about whether to keep juries but what the alternatives are – a judge sitting alone, a judge sitting with experts or with two magistrates.


‘But scrapping juries will risk politicising the role of the judge. Look at what happened to Lord Hutton over the David Kelly inquiry. What if Jeffrey Archer had been tried by a single judge and acquitted? It would have been seen as an establishment cover-up. One of the beauties of jury trial is that it neutralises that reaction.’


He says people lose sight of what these cases are trying to prove – whether or not a person has acted dishonestly. ‘The test is set out in the leading authority of R v Ghosh [1982] QB 1052. It asks: considering all the circumstances, was what the defendant did dishonest by the standards of an ordinary, reasonable person? But who is that person – the judge or the jury, which is, be definition, made up of ordinary, reasonable people?’


Angus McBride, a partner with City firm Kingsley Napley, represented one of the Jubilee Line defendants. He says everyone felt a tremendous empathy with the jury who ‘traipsed in day after day with nothing happening. The fact that most were still around after 21 months was remarkable but shameful, as far as the system generally was concerned’.


He argues: ‘The jury system is not perfect but it appears to work for the best in the vast majority of cases and if juries were replaced by judges in a particular raft of cases, there would be as much criticism and worry as we have now. However, we must treat juries properly and they mustn’t be put through the kind of ordeal they faced in this case.’


At the start of the trial, there was a defence application that the prosecution better particularise its case on the ground that it was too general in nature. That was turned down. Mr McBride says: ‘This case has nothing to do with jury trials. It is about the manageability and proper prosecution of fraud cases.’


Brian Spiro, a partner with BCL Burton Copeland in London, who represents two of the defendants, is a ‘great supporter’ of the jury system. He is also concerned the case will be used as a way of demonstrating that juries are not capable of dealing with fraud trials and that their presence inevitably means trials will be long and expensive.


‘I don’t accept those propositions. What the Jubilee Line case demonstrated was that large complex trials need to be tightly managed from the start.’


Taking a different stance is George Staple QC, a consultant with Clifford Chance and head of the Serious Fraud Office from 1992 to 1997. He shares his view that juries should be dropped in long and complex fraud trials with his successor Rosalind Wright and the current office director Robert Wardle.


Mr Staple is concerned about suggestions that indictments should be cut down to make them manageable for a jury. ‘I am the first to say I don’t think juries should be burdened for the length of time they were in the Jubilee Line case. But it doesn’t seem to me that the answer is to cut down the indictment so much – you can only get a part of the criminality into open court.


‘I am afraid I have been driven to the view that we have to deal with these cases before a different kind of tribunal. I have always favoured a judge sitting with two lay experts. That produces the democratic input you get from a jury and doesn’t leave the case entirely to the judge. I don’t see that an ordinary, reasonable person’s reaction shouldn’t be gauged by a judge and two lay members. I also think it would instil more public confidence than the continually damaging effect of these very long cases collapsing at a late stage and everybody walking away.’


However, Jeremy Summers, a partner in City firm Russell Jones & Walker’s criminal and investigations department, argues: ‘If an American jury can convict Bernie Ebbers, the former chief executive of WorldCom, in six weeks in what was billed as one of the most complicated fraud trials with $11 billion at stake, why can’t we trust a jury in this country to come to a proper and fair outcome?’


Alongside the question of juries, the media focused on the amount paid to the lawyers representing the five legally aided defendants.


The Legal Services Commission (LSC) requires cases that are expected to last more than 40 days to be done on a contract basis with the work agreed and paid for as it progresses.


Mr McBride says: ‘I don’t think there has ever been a case of this size where the work has been so heavily scrutinised as it went on. Every hour of work I wanted to undertake, I had to agree with the LSC case manager, and our files were reviewed every ten to 12 weeks. I think it worked very well. Cases of this complexity are going to cost money, and I feel what we did was entirely justified and necessary.’


Richard Collins, LSC executive director for planning and policy, says they were pleased with the way the contract arrangements worked and believed the costs would have been much higher without them. ‘We have to strike the right balance between allowing the defence teams to get on and do what they are good at but, at the same time, ensuring we have effective control.’


Five years ago, the LSC introduced the serious fraud panel, now called the specialist fraud panel, to help control defence costs in very high-cost fraud cases. There are almost 200 firms on the panel.


Mr Summers says: ‘The panel was a good idea when it was conceived. Then the government realised it had created something of a cartel and, with the best intentions, tried to widen it – but that hasn’t always been achieved without compromising on quality.’


Mr Collins says the LSC will be reviewing the panel in the light of experience to see whether it has pitched the standard and criteria at the right level. ‘I shouldn’t think we will be expanding the range of cases that have to come to panel members. If anything, we would be likely to narrow it and toughen standards so we are really focusing on the biggest cases.’


He welcomes the protocol for complex fraud cases, which came into force last week alongside the Criminal Procedure Rules. ‘Anything that enables judges to get a real grip on these cases as early as possible and stick with them as they go through we wholly support,’ he says.


Practitioners say the protocol, which will apply to all cases expected to last more than four weeks but in particular those likely to exceed eight, is ‘long overdue’. It sets an outer target of three months, although Lord Woolf accepts there will inevitably be cases that last six months or longer.


The protocol sets out requirements for all parties – from investigating officers who must keep interviews concise, to prosecutors who must consider whether steps should be taken to reduce the likely length of a trial, to the defence team that must serve proper case statements.


An assigned judge will be expected to manage cases from ‘cradle to grave’ and, if necessary, allocate a whole week for a case management hearing, which could save many weeks of trial time.


Welcome as that is, Mr O’Kane says: ‘The reality is there aren’t the resources to allow judges and prosecutors, as well as defence counsel, the time to read up on the case months in advance of the trial. There are also likely to be listing difficulties.’


The protocol says the judge should consider ‘pruning’ the indictment or trying defendants separately to shorten trial length, although it warns that the judge must not ‘usurp the function of the prosecution’.


Mr O’Kane says: ‘It is a sensible suggestion that judges should look at whether an indictment has been properly loaded. It may well be that defence lawyers representing the “tail-end charlies” will now be more likely to make an application at an early stage that trying them with all the others would make the case unmanageable.’


The protocol also tries to tackle the ‘intractable’ problem of disclosure. The judge will be expected to set a date by which all defence applications for specific disclosure must be made. It says it is ‘almost always undesirable to give the “warehouse key” to the defence’. However, it adds that defendants in these cases are likely to be ‘intelligent people’ who know their own business affairs and know what documents or categories of documents they are looking for.


Mr O’Kane, a former prosecutor with the Crown Prosecution Service, says that is a ‘slightly glib remark’, adding ‘there wouldn’t be an issue of confidence over disclosure if prosecuting authorities exercised their judgement diligently. But time and again, we have seen situations where that is far from the case.’


Mr Summers agrees: ‘The paper says it is not helpful to give the defence the keys to the warehouse. But who is policing the warehouse? The reality is many prosecuting agencies aren’t doing it properly, as much as anything through lack of resources.’


Another reform that wins qualified backing from defence lawyers would be a properly structured plea bargaining mechanism. Mr Spiro supports the idea, but says there are many pitfalls which would have to be dealt with first. ‘I have had experience of the American system and there is a danger that it can amount to a gun to the head.’


For Mr Summers, the government will find difficulty in successfully introducing plea bargaining because it has drafted such a Draconian confiscation regime. ‘It will simply be unattractive for some people to plead guilty because the confiscation regime can then attack benefit far beyond what most people would consider was reasonably the proceeds of crime.’


However, whatever reforms are introduced, the practitioners agree that the Jubilee Line case was exceptional and should not be used as justification for forcing through change.


As Mr O’Kane says: ‘Hard cases make bad law. Those with vested interests in getting rid of juries will try to use this case as justification, but I think that would be completely false. Many fraud cases are dealt with perfectly sensibly and fairly but, because the wheel doesn’t fall off, no one hears about them.’




Grania Langdon-Down is a freelance journalist