Juror competence in serious frauds since Roskill: a research‐based assessment
| Published date | 01 January 2004 |
| Pages | 17-27 |
| Date | 01 January 2004 |
| DOI | https://doi.org/10.1108/13590790410809004 |
| Author | T. M. Honess,M. Levi,E. A. Charman |
| Subject Matter | Accounting & finance |
Juror Competence in Serious Frauds since Roskill:
A Research-based Assessment
T. M. Honess, M. Levi and E. A. Charman
INTRODUCTION
Over the ages, much scepticism has been expressed
about the ability of jurors Ð individually and collec-
tively Ð to cope `adequately' with the demands
placed upon them. There is no inherent link
between jury competence and acquittals, but no one
in authority has advanced the proposition that
unsafe convictions may equally be the product of
poor understanding. Rather, there has been an
admixture of objections to fraud trial by judge and
jury in England and Wales on the proclaimed
grounds of cognitive incapacity, cost, inherent com-
plexity, and inhumanity to jurors.
1
Jury trial for
serious fraud has been under systematic assault by
the Roskill Report, the Home Oce consultation
paper,
2
the Auld Report
3
and its commissioned if
(it seems to the authors) somewhat prejudiced
review of jury research,
4
the government White
Paper
5
and Clauses 36 and 37 of the Criminal
Justice Bill 2002 (as amended).
Auld LJ concluded
6
that the arguments
`for replacing trial by judge and jury with some
other form of tribunal in serious and complex
fraud cases are the more persuasive. Indeed, they
have become more pressing since the Committee
reported, given the ever lengthening and complex-
ity of fraud trials and their increasingly specialised
nature and international rami®cations. Moreover,
the main basis for not implementing the Roskill
Committee's recommendation for a Fraud Trials
Tribunal, the hope that the procedural and eviden-
tial reforms in the 1987 Act would signi®cantly
reduce the problems of jury trial, has not been
realised.'
He continued:
7
`One course would be to adopt similar criteria to
those for determination whether there should be
trial by jury in civil proceedings for fraud, libel,
slander, malicious prosecution or false imprison-
ment. Such cases are to be tried with a jury
``unless the court is of the opinion that the trial
requires prolonged examination of documents or
accounts or any scienti®c or local investigation
which cannot conveniently be made with a jury''.
8
On the question whether the matter can ``conveni-
ently'' be heard with a jury, the civil courts have
four criteria: ®rst, the physical problem of handling
the documentation; second, prolongation of the
trial, since jury trial takes much longer than with
judge alone; third, expense, since jury trial is much
more expensive, both as a result of prolongation
and its very nature; and fourth, and the most
important, the jury may not understand the case.
9
There is no way of knowing whether a jury has
misunderstood the issues and/or the evidence.'
The White Paper Justice for All
10
states that
`We propose to implement Sir Robin Auld's
recommendation that defendants in the Crown
Court should in future have the right to apply to
the court for trial by a judge sitting alone. The
judge will have discretion whether to grant the
application and will have to give reasons for this
decision. He or she will also have to give reasons
for the verdict at the end of the trial.'
The White Paper ingeniously and appropriately rolls
out the ¯ag of Justice for All when it suggests
11
that
the discouraging eect of the existence of jury trial
upon prosecutions `means the full criminality of such
a fraud is not always exposed, and there are risks of a
double standard between easy to prosecute ``blue-
collar'' crime and dicult to prosecute ``white-
collar'' crime'. More pragmatically, it goes on to
note
12
that
`The Auld report recommended that the judge
should have the power to direct such fraud trials
without a jury, sitting with people experienced
in complex ®nancial issues or, where the defendant
agrees, on their own. We recognise that the
expertise of such people could help the trial
proceed. However, identifying and recruiting
suitable people raises considerable diculties, not
Page 17
Journal of Financial Crime Ð Vol. 11 No. 1
Journal of Financial Crime
Vol.11, No. 1, 2003, pp. 17 ±27
#HenryStewart Publications
ISSN 1359-0790
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