Retiring the jury

I don't think the Maxwell jury understood what happened. I think they just blamed it all on Robert.” This was the view of the head of the Serious Fraud Office (SFO) Rosalind Wright, expressed in an interview with The Guardian last month, about the jurors who acquitted Kevin and Ian Maxwell. The reason for her comments about the Maxwell saga was the publication of Sir Robin Auld's report into the criminal justice system, which once again calls time on the jury in serious and complex fraud cases.
Not surprisingly, Monty Raphael, senior partner at Peters & Peters and the solicitor who acted for Kevin Maxwell, fiercely contests any suggestion that the jurors failed to grasp the arguments put before them. “I don't know where the evidence for that is. We certainly didn't see any sign of it,” argues Raphael.
He believes, rather, that the judge – then Mr Justice Phillips, now Lord Phillips of Worth Matravers, Master of the Rolls – “went out of his way to make sure that the jury understood everything”.
Nevertheless, the Maxwell trial, alongside such high-profile cases as Guinness and Blue Arrow, forms part of the ammunition repeatedly relied upon as evidence for the justification of scrapping juries in fraud trials.
Earlier in the month, Lord Justice Auld proposed that “in serious and complex frauds, the nominated trial judge should have the power to direct trial by himself and two lay members drawn from a panel established by the Lord Chancellor”. It is a proposal that is as old as the SFO itself.
The removal of jurors was first flagged up by Lord Roskill in his report on fraud trials in 1986, which led to the establishment of the SFO. It has been resurfacing on a regular basis ever since – much to the chagrin of defence lawyers and civil libertarians.
The Law Society and the Bar Council adopted a united front against, in the words of the bar, the “major assault on juries” that was the Auld report. Of course, the opposition was focused primarily on plans to abolish the right to jury trial for all but indictable-only offences and either-way offences attracting more than two years.

“I've known a number of judges who couldn't understand complex fraud trials. Juries are the best arbiter of what is and isn't acceptable behaviour”
Monty Raphael, Peters & Peters

But according to Bar Council chairman Roy Amlot QC, that attack was “made worse” by the idea of imposing trial by a judge and assessors in serious fraud cases. “Such proposals are unfortunate in that they place little trust in ordinary citizens playing a role in our justice system in a manner designed to win back public confidence,” he complains.
Defence lawyers specialising in white collar crime are unhappy, if not surprised, by Auld's proposals. “Extremely disappointing and very predictable,” is the blunt view of Adam Cowell, a partner in Irwin Mitchell's business crime unit and secretary of the International Criminal Law Association. “A judge would be the first person to think that they could try these things, wouldn't he?” he quips.
But do the ordinary folk that make up juries manage to keep up with the complexities of the cases? In Cowell's experience, they certainly do. “Of course there are some people who sit on juries who aren't able to follow the case, but the notion that there's more than one person every now and then is something of a myth,” he argues.
According to Cowell, most fraud cases are about “the very simple issue of whether someone is being dishonest or not. I believe that it's quite condescending towards the general public to insist that you have to be a lawyer to understand the factual matrices of what we're talking about. Why should lawyers be better than anyone else?”
If jurors are failing to understand what the lawyers are talking about, then it is “a hideous indictment of the bar”, reckons Christopher Murray, a partner at Kingsley Napley who sits on the Law Society's criminal law committee. “Barristers are communicators and they should be there to ensure that juries do understand,” he argues. Murray also attests to the fact that he has not been involved in a case where a jury has been left behind by the lawyers.
However, he queries whether the current system for conducting large-scale fraud cases – which can take four years to come to trial, last another 18 months and cost the taxpayer huge amounts of money – is the “best way of achieving what society wants”.
While being an admirer of Auld's report, Murray has reservations about its recommendations on jury trial. “The trouble is that nobody knows what juries do or don't think, because there's no research into this,” he says. Section 8 of the Contempt of Court Act 1981 forbids any investigation of what happens beyond the jury room door.
It is a theme that Raphael also picks up on. Again, he supports many of Auld's recommendations, but argues that abolishing juries without conducting proper research is “putting the cart before the horse”. He adds: “I've known a number of judges who quite clearly couldn't understand complex fraud trials.”
Raphael is also an advocate for the retention of juries in fraud trials. “I still think they're probably the best arbiter of what is and isn't acceptable behaviour for the community as a whole,” he says.
Cowell believes that the only proper indication of what goes through the jury's collective brain comes from the notes they hand back when they are making their own deliberations as to the verdict. For a typical fraud trial such considerations take days, if not weeks, and Cowell believes that the nature of their questions suggest “that they've followed everything and are well aware of all the issues”.
There are less controversial reforms of jury trial in the Auld report with which white collar defence lawyers would agree. For example, many lawyers, including those comprising the Bar Council, welcome the recommendation to allow a white collar defendant to elect trial by judge alone.
Raphael backs Auld's calls to tighten up exemptions from jury service. According to Home Office figures in 1999, two out of three people who are called for jury service avoid it. For fraud cases, which can run for many months, the figure is expected to be much higher. Wright at the SFO observed recently that this often left “people who don't have any good excuse” happily whiling away a few months on jury service.
“There's no doubt that people who have some experience of commerce will find the concept of fraud much easier to comprehend, and these are the people who are normally excused because complex jury trials take too long,” says Raphael, adding that potential jurors should be induced to attend by being paid for their time.
Of more concern, however, is the proposed replacement of the jury by two specialist lay members. According to Murray, such candidates would be drawn from “the great and the good” in the City, and one problem is that such professionals could become “battle-hardened”. “One of the criticisms that has been made of stipendiary magistrates is that they sit in the same courts day in and day out, and there's a danger that a lack of objectivity and cynicism creeps in,” he says, adding that the same could become true of fraud panel members.
Another problem he foresees would be in a Maxwell-scale trial, where it could be difficult finding someone from the City who was not connected in some way to the allegations.
For the civil libertarian lobby, the same argument applies whatever the offence. “Crime is crime,” argues John Wadham, the solicitor-director of Liberty. “None should be exempt from due process in the criminal justice system.” There may be “a challenge” in presenting the evidence clearly in fraud cases, he argues, but “we're effectively talking about theft”.
Rod Fletcher, a partner at Russell Jones & Walker who specialises in business crime, agrees. “In today's climate, it's not the time to be undermining the objectivity and fairness of trial proceedings,” he asserts. As he sees it, more and more powers are being given to the prosecuting authorities to investigate business crime, such as those being considered in the renewed clampdown on money laundering, which were introduced in the wake of the 11 September terrorist attacks.
“The same principles apply, whether you're charged with conspiracy to defraud or burglary or whatever,” Fletcher argues. “If you start changing the principle for one category of case, then it's not long before they change it for another.”