Trials on Indictment without a Jury
| Author | Alec Samuels |
| Date | 01 April 1995 |
| DOI | 10.1177/0032258X9506800206 |
| Published date | 01 April 1995 |
| Subject Matter | Comment |
COMMENT
Trials
on
Indictment without a Jury
Alec Samuels
The trial of serious
and
complex fraud presents
many
problems. Fraud is
adifficult 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.' In 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 afraud 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
aconstitutional 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.
1 SaundersvUnited Kingdom (1977) 23 EHRR 313. ECtHR.
125
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