Trials on Indictment without a Jury
| Published date | 01 March 2004 |
| Author | Alec Samuels |
| Date | 01 March 2004 |
| DOI | 10.1350/jcla.68.2.125.29120 |
| Subject Matter | Comment |
COMMENT
Trials on Indictment without a Jury
Alec Samuels
The trial of serious and complex fraud presents many problems. Fraud is
a difficult legal concept. There is no definition of serious and complex;
the Serious Fraud Office (SFO) sets its own criteria. The substantive law,
a mixture of common law, conspiracy and theft, can be forbidding and
confusing, especially to the jury. There are real difficulties in gathering
and presenting admissible evidence. Compulsorily obtained evidence is
not admissible.1In a global world fraud tends to have global dimensions
too. It is believed that much serious and complex crime is simply not
prosecuted because of presentational problems. The jury of ‘peers’ is said
to comprise the unemployed and the unemployable, unrepresentative
of the community, hardly likely to understand the nature of business
fraud, money laundering, commercial and banking practice, taxation,
VAT; and the legal issues and legal language. The middle-class potential
jurors all get themselves excused. The pool of available jurors is much
reduced; random selection does not lead to random composition. The
issues are likely to be complex. The trial is likely to be long, often very
long; six months for a serious fraud case is not at all uncommon. The
expense is enormous. Some celebrated cases, for example Guinness,
Wickes, Maxwell, Levitt, Blue Arrow, Eden and Brailey, have been said
to have been almost unmanageable. Charges and counts have had to be
reduced and pared down and dropped and severed, in order to present
the case to the jury, and this has made it difficult to present the real case
at the trial. The defence lawyers do all they can to frustrate the prosecu-
tion, as is permitted under the adversarial system. Emphasis is laid upon
the human rights of the defendant, as is permitted, indeed encouraged,
under the European Convention on Human Rights, now incorporated
into English law. The judge may not have much experience and ability
in conducting a fraud trial. Resources generally are in short supply, as in
the criminal justice system as a whole, and technology is only just
beginning to make an impact. Nobody knows what goes on in the jury
room, the deliberations are secret, research is not permitted, and no
reasons are given for their decision, simply guilty or not guilty. The
seemingly perverse jury is not unknown. The miscarriage of justice jury
verdict is not unknown.
Jury trial is not an historical right (jurors were originally witnesses)
nor a constitutional right, and certainly not a human right. The right to
a fair trial by an independent and impartial judge or tribunal does not
require jury trial, and jury trial is not available in most European
Convention countries, certainly not in the English or American
model.
1Saunders v United Kingdom (1977) 23 EHRR 313, ECtHR.
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