SFO must share delay blame

Neil Micklethwaite says attack on defence lawyers is unjust. Neil Micklethwaite is head of litigation at Dibb Lupton Alsop. The attack by Serious Fraud Office (SFO) director Rosalind Wright on the delaying tactics of defence lawyers in fraud trials – reported on the City page two weeks ago in The Lawyer was unjustified and inaccurate.

Defence lawyers' responsibilities to clients and courts are clear. So long as the criminal justice system allows for such tactics, it is improper for Wright to complain.

Her accusation is that it is in the “defence's interest to prolong the trial for as long as possibleA keeping the issues blurred and unclear”. This is simply misleading.

The SFO's annual report acknowledges that “fraud trials are inevitably lengthy, complex and demanding”. Also, the Criminal Procedures and Investigations Act 1987 binds the defence to a strict timetable while, under the Criminal Procedures Investigations Act 1996, the defence has to comply with stringent disclosure requirements. Under this Act, a defence case statement must be submitted to the prosecution broadly outlining the nature of the defence.

It is too easy for the SFO to shirk all responsibility for delays. Despite having draconian powers of investigation and prosecution, the SFO is blighted by an inadequate and ineffectual use of section 2 notices and interviews, long drawn-out investigations and an inability to see the wood for the trees.

Wright should recall the Butte Mining case, one of the UK's longest fraud actions, which took the SFO five years to investigate. The trial lasted 187 days with three of the four defendants convicted at a cost of over £5m in legal aid.

One of the main reasons for the delay was the SFO's stance. The prosecution insisted on presenting evidence on both the alleged mining fraud and benefits fraud despite very clear indications from the judge that the mining fraud evidence was not needed. The SFO's inflexible stance meant five and a half months of the trial were taken up hearing evidence which the jury had clearly rejected.

The SFO ignores the impact of Article 6 (1) of the European Convention on Human Rights at its own peril. Under this Act, “everyone is entitled to a fair and public hearing within a reasonable time”. Attacking legitimate defence tactics and blaming juries will no longer be acceptable excuses for delays where potential breaches of human rights are at stake.