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Those of us who have acted for defendants in recent serious fraud trials may be thankful for the jury system. However, continued reliance on 12 men and women taken from the Clapham omnibus to redeem outmoded and inefficient legal processes is only a long-stop solution, albeit one that should not be removed unless a more satisfactory system is in place.
The real problem is that serious fraud is frequently concerned with complex technical issues not understood by the majority of those in court. Those lawyers who do understand the issues tend to be reluctant to develop them in front of the judge and jury on the grounds, probably justified, that the jury will not understand them.
George Walker went so far as to say that, in his opinion, no one in the court fully understood the issues of his case. How far did this apply, I wonder, to some of those presenting the SFO case?
The result is that, despite the great expense of preparing for and conducting a trial, matters are ultimately decided on superficial issues without the technical evidence being properly addressed. To resolve that dilemma, judges need the assistance of technically qualified assessors appointed by the court. Those assessors should be involved in the examination of expert witnesses and in the interpretation of their evidence to the judge and jury. Initially, this would ensure that verdicts took into account the important issues in a case, rather than dismissing them as too complex to explain.
In the longer run, hearings on technical matters may be separated from the main trial and the technical evidence presented to the court in summary form by the assessors. That could result in fairer and cheaper justice. There could be massive savings if technical issues were dealt with at preliminary hearings and there was a full trial only when assessors had established that the technical arguments had some merit and were properly prepared and developed.
Peter Dickerson is a litigation specialist with Baker Tilly, chartered accountants.