Media reaction to the decision of Mr Justice Buckley has been depressingly familiar to those concerned with Maxwell's defence over the past five years.
“Maxwell gets off – Official” cried the Evening Standard. Contrast that with the headline in the same paper eight months earlier, following the jury's unanimous verdict of not guilty: “Maxwell's Cleared”.
It is important to try to put the record straight. The jury trial of what the prosecution described in 1994 as “its best foot forward” in relation to the most serious alleged criminality, namely conspiracy to defraud the Maxwell pensioners, lasted 131 court days.
There had earlier been over 60 days of preliminary hearings. These concerned issues of trial management and admissability of evidence. There was also the jury empanelling and an abuse of process hearing in February 1995 when Mr Justice Phillips (as he then was) expressed the view that in spite of the seriously prejudicial press and media coverage, he believed that the defendants would receive a fair trial.
Over 70 witnesses were called. Kevin Maxwell himself gave evidence for over 20 days. In the judge's summing up and in closing speeches by counsel, including leading counsel for the prosecution, it was emphasised that the key issue for the jury to determine was whether or not, in relation to the alleged misappropriation of pension funds, the defendants had acted honestly.
Of Kevin Maxwell, Lord Justice Phillips said: “I doubt if there have been many criminal cases where the jury have had a better opportunity to study the demeanour of a witness. You will have formed individual views and maybe a collective view of whether or not Kevin Maxwell gave an impression of speaking the truth.”
After one of the longest jury retirements on record (seven days of deliberations spread over 10 days and 11 nights) the defendants were unanimously aquitted. The next day, the Attorney General saw fit to appear on national radio and implicitly call the jury's verdicts into question by confirming that the Government was now looking seriously at the use of juries in serious fraud cases. Would the Attorney General have extolled the virtues of the system had the jury convicted, I wonder?
Surely the true test of the operation of a fair system of criminal justice is whether individuals accused of serious crime can be tried within a reasonable time and have the opportunity properly to defend themselves.
The obligation of the prosecution is to place prima facie evidence of criminal wrong doing before a jury and to seek to prove its case beyond reasonable doubt; the obligation is not to seek a conviction at all costs. If the case proceeds beyond the end of the prosecution case (“half-time”), then the prosecution – and the system – have not failed.
Equally, merely because the jury proceeds to acquit in no way represents a “failure” or “fiasco” as the Maxwell result has been described. Still less does it represent a failure for the Serious Fraud Office, which all too frequently appears to be judged according to criteria more apt for a sports encounter.
As Mr Justice Buckley put it: “I am suggesting that if all parties played their part and the criminality alleged has been placed before a jury who have acquitted, it should be unusual for a second trial to take place.
“The reason is that it would be very likely to appear to the public that the authorities were not prepared to accept the verdict of a jury and were prepared to pursue the defendant at whatever cost to the public purse, court time or disruption to the defendant's personal life, business or professional career.
“That must not happen…I would add that anyone who has any experience of the jury system is well aware that juries sometimes appear to be influenced by broader considerations than might sway a lawyer or accountant in the discharge of their professional duty. That is not surprising since it is common for judges to invite juries to pool their experiences of life and draw upon common sense in considering the evidence.
“Of course, in a notorious case, people looking on will have their own theories, some better informed than others. Since we have a jury system we should all accept their verdicts. In the Maxwell case that is overdue. I accept the jury's verdict. These proceedings are stayed.”
The criticism of the jury system is deeply insulting to the 12 jurors who so properly discharged their duty to try the defendants according to the evidence.
Of the 70-plus written questions the jury asked during the trial, many were better formulated than those of the lawyers and demonstrated, to all present, a keen understanding of the issues at the heart of the case.
That the jurors took their responsibilities seriously cannot be doubted: three of their number voluntarily attended the commencement of the stay/oppression application before Mr Justice Buckley on 9 September, having made enquiries with the court authorities to ascertain the hearing date. Five were present 10 days later when the learned judge delivered his judgment.
All of us, not just Kevin Maxwell and his co-defendants, owe Lord Justice Phillips, Mr Justice Buckley and the jury a debt of gratitude for ensuring common sense and fairness remain at the heart of our criminal justice system.