Jury still out on reform

The outcome of the Wickes trial highlighted how useful juries can be, argues Anand Doobay, as he questions the need to change the system

The Criminal Justice Bill, published on 21 November 2002 as anticipated, provides the prosecution with an option to apply for a complex or lengthy trial to be heard by a judge alone without a jury.

One week after this bill was published, a six-year Serious Fraud Office (SFO) investigation was brought to a well-publicised close.

The Wickes inquiry started in November 1996 with charges being brought in mid-1999 and the jury returning its verdict on 25 November 2002.

After a 10-month trial, the jury took less than eight hours to reach a unanimous verdict, finding all three remaining defendants not guilty on every charge.

The SFO, a significant supporter of the government's proposal, expresses the fear that long fraud trials place an unfair burden on the average jury member both as to time and comprehension.

However, juries, like that in the Wickes case, will be warned of the possible length of the trial and they may be excused if the burden is too great or if for any reason they are unable to undertake this civic commitment.

The director of the SFO, Rosalind Wright, has herself admitted that 'it would be surprising, perhaps disturbing, if every person charged with a serious criminal offence were to be convicted; why bother with the panoply of lengthy jury trials and the presumption of innocence if everyone charged by the SFO is guilty.'

Perhaps the question the government should be addressing is not whether the right to jury trial in fraud cases should be abolished but whether the system for prosecuting these cases needs urgent reform.

Unlike the Crown Prosecution Service, the SFO does not have an independent review process for deciding whether or not to proceed with a case.

On the contrary, there is a great deal of media and possibly political pressure on this agency to produce results, particularly after lengthy and costly investigations.

The Wickes case required all those in court - lawyers, judge and jury alike - to understand fairly detailed concepts of retail trade and accountancy.

Complexity of issues are concepts not confined to fraud cases but can be found in many other criminal trials, and particularly those in which detailed forensic evidence or medical issues are for determination.

Serious and complex fraud trials are by their nature lengthy.

If the prosecution is to carry out its task by putting before the court the full range of the alleged criminality, then the evidence must describe the chronological scope of the activities as well as their nature.

Should the proposed legislation pass, it will be interesting to see what real time is saved by presenting evidence in a way which is both fair to the accused and comprehensible to a judge, who has little experience of the economic activity involved.

In the Wickes case, having heard the verdict returned, the trial judge told the jury: 'Those who may hereafter criticise juries' appreciation of lengthy and complex fraud cases would have done well to see the care and attention that...

you have given to this case throughout.'

Juries do not always come to the conclusion that the establishment or indeed public opinion at large would wish.

However, the jury system is an established and, by and large, satisfactory institution for the trial of cases which affect reputation and liberty.

Surely the onus of proof is on those who wish to abolish this tribunal to demonstrate, as they have not done so far, that there is something seriously wrong with the system.

Anand Doobay is a solicitor at London firm Peters & Peters in the fraud and regulatory department and acted for Trefor Llewellyn, the ex-finance director of Wickes Plc, who was recently acquitted of all charges brought against him