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07 Oct 2014

David Corker published in The Lawyer re juries in fraud cases

When juries are right and judges are wrong

A recent case highlights why juries in fraud cases are anything but an anachronism.

Since at least 1985 when the Roskill report on the conduct of criminal fraud litigation was written with its recommendation for an expert tribunal to supplant the jury, there have been repeated calls for its abolition in criminal fraud trials.

On every occasion since then when some august committee or eminent judge has been commissioned by Government to recommend the means by which the criminal justice system can be simplified and streamlined, there has been a clamour led by Serious Fraud Office (SFO) directors and the like that juries in fraud cases are an anachronism. The abolitionists have argued principally that the subject-matter of such litigation is too far removed from ordinary life and too arcane for a member of the public to comprehend.

Further, that whilst the issue of dishonesty may appear to be within the grasp of all, the attendant complexity of the evidence makes it all too easy for a defence advocate to obfuscate and bamboozle so that hopelessly confused, the jury returns a perverse verdict of acquittal.

These proponents should find a reading of the Court of Appeal’s judgment delivered on 19 September in the case of SFO v Papachristos and Kerrison, a salutary experience. The SFO only prosecutes cases of serious or complex fraud and this trial lasted 15 weeks. The charge was conspiracy to corrupt and there was a lot of documentary evidence concerned with alleged overseas bribery. So by no means could this trial be described as a straight-forward one.

The trial ended with verdicts of guilt and so is a victory for the SFO which it has rightfully since paraded. However what the court’s judgment reveals is that but for the trial jury, the SFO could have suffered an ignominious defeat. Moreover in the opinion of the court that amongst many of the participants in that courtroom,  trial judge included, the one which acted with logic and wisdom was the jury.

The issue which led to the court having to opine concerned a very late amendment to the Indictment by which a second count was added. This was designed to narrow the ambit of the alleged criminality and so allegedly clarify for the jury what it needed to determine. At the end of his summing up, the judge directed the jury that as the ambit of count 1 was broader than that of count 2 then it could not convict on the latter without first doing likewise on count 1. The jury however ignored that direction, it acquitted on the first and convicted on the second. Such a “runaway” jury was the impetus for the appeals against conviction.

The role of the court is to decide whether a conviction is safe. In so doing it can look at all the circumstances. It is not obliged to quash convictions because a jury acted defiantly although not to quash in this circumstance would necessarily mean that it held that the jury was right to do so.  The court therefore must have appreciated the uncomfortable position it was in as it would hardly be keen to condone a jury’s decision to ignore the trial judge’s mandatory direction to it.

The court faced with its dilemma backed the jury. It held that the addition of the second count was an “entirely unnecessary step” and the judge’s direction “lacked logic”. It concluded, “the jury were right and the judge was wrong” and despite the fact that had the jurors applied it this would have resulted in a verdict of acquittal, their “refusal to apply the direction” did not render the convictions unsafe.

Whilst this is only one case and the urge to extrapolate based upon it should be restrained it nonetheless provides the clearest demonstration of the qualities of fairness and common sense which the vast majority believe still repose in our system of trial by jury.

David Corker, Partner, Corker Binning


The full article can also be found here.