A split decision on severance

The decision of Mr Justice Buckley to stay further proceedings in the Maxwell case has given rise to debate on two topics: the continuation of jury trial in serious fraud cases, and the implication of the ruling for future complex trials.

The debate about jury trial which follows the acquittal of any defendant in an SFO prosecution is unjustified, unhelpful and appears to be implicitly founded on a conclusion that the verdict is perverse. In the Maxwell trial the evidence was complex, but the issues were analysed under seven propositions which were clear to a layman in the summing up.

The belief that serious fraud trials are, by definition, beyond the grasp of a lay jury is not clear. Whether public confidence in the criminal justice system would be enhanced by a panel of City assessors trying fraud cases is open to question.

Certainly Maxwell provides no basis for abolishing jury trial in fraud cases. The ruling does, however, have implications for future complex trials (not only in fraud cases). It was not disputed that the charges on which the Crown sought to proceed in the second trial (conspiracy to defraud banks) were good both in form and substance. They were properly joined in the original indictment and were severed from the counts in the first trial (conspiracy to defraud the trustees and beneficiaries of the Maxwell Group pension scheme) solely on the grounds of trial manageability.

It did not follow that acquittals or convictions at the first trial would necessarily lead to similar verdicts in the second. Different defendants were involved (one of those involved in the second trial had not been indicted in the first), the victims were different, and the evidence to prove the charges was inevitably different. The honesty of Kevin Maxwell was obviously a crucial issue in both trials, but it was not the sole issue in either.

The Crown did not seek to go behind the jury's verdict in the first trial but to prove different charges, against different defendants, on different evidence. The comment of Mr Justice Buckley at the end of his ruling, “Since we have a jury system we should all accept their verdicts… I accept the jury's verdict. These proceedings are stayed”, suggests that a second trial will be stayed if it contains common evidential features with the first trial on which a defendant has been acquitted even though the parties indicted, the victims concerned and the evidence required all differ.

Such an approach is likely to lead prosecutors to resist severance in the knowledge that an abuse application will succeed if the defendant is acquitted in the first trial.

In the Britannia Park case, R vs Kellard and ors the Court of Appeal deprecated the length of the trial and held that, although properly joined in the same indictment, it would have been preferable for there to have been three successive trials involving the same defendants. Mr Justice Buckley commented that this ruling may have been based on the extraordinary features of that case. But there was nothing extraordinary about Britannia Park. The Court of Appeal clearly contemplated Kellard standing trial more than once, if he was acquitted in the first trial.

There is now an unattractive choice for prosecutors. If they accept severance and an accused is acquitted in the first trial, Maxwell will be cited on the abuse argument to stay the second. If they resist severance, they will be met with arguments both at trial and in the Court of Appeal, that the trial is unmanageable and oppressive.

One final comment on Maxwell. There were, of course, exceptional features in that case which could legitimately weigh with the judge on the abuse submission: the scale of the deficiency, the adverse media comment, the length of the first trial and the cost to the taxpayers of the second trial. But the final factor which the judge averred to was the evidence of the defendant's wife, who was called during the abuse hearing. Pandora Maxwell was clearly an impressive witness whose distress touched the judge.

“She told me of problems with her children. In particular, their son, who had been told by schoolmates that his father was going to prison for a long time. Whenever her husband goes out she is now repeatedly asked 'Will daddy be coming home again?'”

The admission and reliance on such evidence in an abuse argument is novel. It puts a premium on a sympathetic and articulate spouse.

It will be interesting to see whether burglars who are charged on two indictments will receive a sympathetic hearing when they seek to stay a second trial on the basis that the whole ordeal has had a damaging effect on their family life, and seek to call their co-habitee to speak on the issue.