Fraud Trials: A Brave New World

DOI10.1350/jcla.2005.69.6.508
Published date01 December 2005
AuthorDavid Kirk
Date01 December 2005
Subject MatterArticle
Fraud Trials:
A Brave New World
David Kirk*
Abstract The management of long fraud trials has come under the spot-
light again following the collapse of the Jubilee Line Extension case. Three
major changes to fraud trials procedures are in the process of being
introduced: the Lord Chief Justice's complex trials management protocol,
a new offence of fraud (the Fraud Bill), and the removal of jury trial
(implementing s. 43 of the Criminal Justice Act 2003). This article exam-
ines these initiatives and debates and considers whether they will improve
the quality of justice.
The trial of heavy fraud cases has always caused problems, and from
time to time attempts have been made to solve those problems. The
success rate of these attempts has been low. The pace of change has
recently increased, with three signif‌icant initiatives being rolled out
during 2005. These proposals have the overall aim of making the trial of
complex fraud more successful and economical, by improving case
management, removing juries and creating a new fraud offence.
On 22 March 2005 the Lord Chief Justice issued a protocol for ‘the
control and management of heavy fraud and other complex criminal
cases’.1It is the latest in a long line of such directives which have
generally exhibited all the hallmarks of the triumph of hope over
experience.2
In June 2005 the Attorney-General announced that the Government
would seek parliamentary approval for the implementation of s. 43 of
the Criminal Justice Act 2003, which will allow complex trials to be tried
without a jury.
At the same time, the Government is pressing ahead with the Fraud
Bill, which will create a new offence of fraud, hewn out of the remnants
of ss 15, 16 and 22 of the Theft Act 1968, and ss 1 and 2 of the Theft Act
1978.
An additional, albeit tangential, factor is the funding of legal repre-
sentation in complex cases, now generally dealt with under the Very
High Cost Cases provisions in an attempt to drive down defence costs.
This scheme has led at times to diff‌icult questions of control of defence
preparation by civil servants whose role is constitutionally ambivalent.
* Partner, Simons Muirhead & Burton; e-mail David.Kirk@smab.co.uk.
1 Available at www.dca.gov.uk/criminal/procrules_f‌in/contents/pd_protocol/pd_
protocol.htm, accessed 18 September 2005.
2 The extent to which the content of the protocol contains anything new may be
judged from a passage from the introduction to the 1st edition of Serious Fraud:
Investigation and Trial by D. Kirk and A. J. Woodcock (Butterworths: London, 1992):
comment was made about the failures in certain cases, and the renewed debate
about the viability of fraud trials. The authors asked: ‘Should juries be replaced by a
fraud trials tribunal? Should fraud trials be tried by a single judge? Should juries be
retained at all cost, with pre-trial and trial procedures being tightened up? Should
the SFO indulge in formal plea bargaining . . .? Would an offence of fraud assist?’.
508

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