Mind the two-year gap

The Jubilee Line fraud case fiasco has left jurors affronted and taxpayers £60m out of pocket. Jon Robins reports on the latest nail in the coffin for trial by jury

In the normal course of events, jurors are not allowed to speak out. But it has been hard to shut up the 12 angry men and women on the aborted Jubilee Line trial.

“It was a shambles,” said one juror, “a complete waste of taxpayers’ money.” Another member of the jury fiercely rubbished any suggestion that they were not up to dealing with the intricacies of the case. “We understood every single thing,” she said. “We’d made hundreds of notes. It was very easy to understand.” The fact that the case never got as far as jury-room deliberations means that the usual contempt of court restrictions cannot silence the jurors, who have wasted almost two years of their lives.

The Attorney-General Lord Goldsmith has now asked Stephen Wooler, chief inspector of the Crown Prosecution Service (CPS), to launch an inquiry into the conduct of the case of two businessmen accused of bribing London Underground executives over contracts to build the £3bn Jubilee Line extension. Defendants were accused of handing over cash in brown envelopes and providing prostitutes to get ‘inside’ information. Six were acquitted and one pleaded guilty. What is reckoned to be the longest-ever fraud trial hit the buffers when, after almost two years, a frustrated juror went on strike.

Unsurprisingly, defence lawyers are backing the jurors to the hilt and are fearful that the Jubilee Line trial will be cited as a reason for the Government invoking the Criminal Justice Act 2003. Ministers reluctantly agreed a compromise in that legislation whereby the power to dispense with a jury would not come into effect without a further vote by both houses of parliament.

Brian Spiro, a partner at white collar specialists Burton Copeland who represented defendants Stephen Rayment and Mark Woodward-Smith, says he and the other lawyers voiced their concerns from the beginning. “We aren’t being wise after the event because this was something we were saying right from the outset,” he insists. “We made applications that the prosecution should better particularise the allegations in the indictment and better define the allegations. As the indictments stood, there was always going to be a problem that the case would become unmanageable.”

“There is a great duty on the prosecution to ensure they only call evidence which is necessary to put forward their prosecution,” comments Michael O’Kane, a partner at white collar crime firm Peters & Peters, who represented another of the defendants. “A lot of prosecutions have insufficient focus on the real core issues at the heart of a case and throw everything in for fear of leaving something out which they might think, later on, may have resulted in a conviction.” O’Kane, a former senior prosecutor with the CPS, argues that the Lord Chief Justice’s new protocol for the control and management of heavy fraud and other complex criminal cases places greater emphasis on the trial judge and the need for that judge to exercise strong case management skills. It was, ironically, published on the day that the Jubilee Line trial broke down.

The protocol proposes that judges should use their powers to ensure that all non-contentious issues are agreed well in advance, so only the contentious issues are litigated. “If these proposals were implemented rigorously, it would be unlikely any case would last more than six months, which is the issue,” adds O’Kane.

Patrick Upward QC, who led the CPS team, revealed that the trial’s momentum flagged to such a degree that it took 14 months to conclude the Crown case, when the estimated time was only 15 weeks. In that period alone, 11 weeks were lost to illness, eight weeks for scheduled holidays (including a juror’s honeymoon), three weeks for paternity leave and a further two weeks were lost because of witness difficulties. It was revealed that, in the last seven months, jurors heard evidence on only 13 of the 140 days. In the meantime, wedding plans were shelved, promotions were missed and three jurors had paternity breaks.

While defence lawyers are discreet in their criticism of the case management talents of 69-year-old Judge Ann Goddard – not least because they have the Wooler inquiry pending – off the record they are blunt about the “scandal” of the trial. The Legal Services Commission (LSC) reckons that five of the defendants received legal aid at a cost of just under £14m, and press reports put the total cost to the taxpayer in the region of £60m. It has been reported that silks, such as Nicholas Purnell QC and Julian Bevan QC, were paid in the region of £3,000 a day.

What about the huge costs of the case? The LSC line is that the costs would have been a lot higher were it not for its recent arrangements – in particular, the new ‘very high-cost cases’ regime.

“The high defence costs in this case are a result of its complex nature, the volume of documentary evidence produced by the prosecution and the length of the trial,” says Richard Collins, executive director for planning and policy at the LSC. “Although high, the defence costs will be in proportion to the costs of the other agencies involved, which will also be significant.”

Certainly, the hands-off management style of Judge Goddard gave the defence licence to spin the case out of control. It was reported that the defence insisted on trawling up 69 million pages of London Underground documents to examine all Jubilee Line contracts.

“There were personality issues between the prosecution and the defence teams,” reports one lawyer. “That just doesn’t help a trial. An awful lot of the criminal process gets resolved in a professional way in the course of discussions which take place outside of court, and if that’s not possible because of this kind of breakdown it’s inevitably going to impact on that way the case is presented.”

‘Muddying the waters’ is one of the legitimate techniques deployed by the defence, comments Jason Mansell, a white collar law specialist at 7 Bedford Row and a former CPS prosecutor. “All they’re doing is playing the system,” he says. “But it’s for the judges and prosecutors to try and present the case simply and in a way where the waters can’t be muddied. It’s down to the judge to take a firm grip of the case.”