Judicial perspectives on the conduct of serious fraud trials

Criminal Law Review

Volumn , Issue OCT., 2007, Pages 751-768

  Julian, Robert F ^a  

^a New York State Supreme Court ^*

Author keywords

Criminal evidence; Judges; Jury trial; Serious fraud cases; Trial without jury; Verdicts

Indexed keywords

EID: 34948865794     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (76)

1. Roskill Committee, Frauds Trials Committee Report, (1986), p. 142;
2. Miriam Peck, The Frauds (Trials Without a Jury) Bill 2006-07, November 23, 2006;
3. Research Paper 06/57 Home "Affairs Section, House of Commons Library, p. 10: The majority of the Fraud Trials Committee appointed in 1983, and chaired by Lord Roskill, recommended that serious and complex frauds cases should be tried by a Special Frauds Trials Tribunal consisting of a judge and a small number of lay members, instead of a jury."
4. M. Levi, The Investigation, Prosecution and Trial of Serious Fraud, Royal Commission on Criminal Justice Research Study No.14, (Home Office, London, 1993).
5. Auld L.J., Review of the Criminal Courts of England and Wales (2001), http://www.criminalcourts-review.org.uk/ccr-00.htm p.282, para.4.31.
6. Sally Lloyd-Bostock, "The Jubilee Line Jurors: Does their Experience Strengthen the Argument for Judge-only Trials in Long and Complex Cases?" [2007] Crim. L.R. 255.
7. Harry Kalven Jr and Hans Zeisel, The American Jury, (University of Chicago Pr, United States, 1966).
8. Kalven Jr and Zeisel, The American Jury, (Univeristy of Chicago Pr, United States, 1966), p.58.
9. T. Eisenberg, P. Hannaford-Azor, V. P. Hans, N. L. Waters, G. T. Munsterman, S. J. Schwab and M. T. Wells, Judge-Jury Agreement in Criminal Cases: A Partial Replication of Kalven and Zeisels "The American Jury", (2005) 2 J.E.L.S. 171, 173.
10. Penny Darbyshire, Andy Maughn & Angus Stewart, What Can the English legal System Learn from Jury Research Published up to 2001?, Kingston Business School/Kingston Law School, (2002) Occasional Paper Series 49, pp.45-62.
11. The Fraud Trials Without a Jury Bill 2006-07 which is pending but as of this writing on March 20, 2007, the House of Lords voted to delay the second reading of the Bill for six months. See, "Peers Wreck No-Jury Fraud Trial Bid", The Guardian, March 20, 2007.
12. The year will not be published as the author has agreed to maintain the anonymity of the judges as a condition of their cooperation with this study.
13. Serious fraud as used in this paper will rely upon the general description given in the Control and Management of Heavy Fraud and Other Complex Criminal Cases - a protocol issued by the Lord Chief Justice of England and Wales, March 22, 2005, summarised as a case that involves fraud or other crimes which could result in a complex trial, that is a trial that will require more than eight weeks to try and thus the protocol should be followed "in all cases estimated to last more than four weeks", as well as in any case prosecuted by the Serious Fraud Office or the fraud prosecutors of the Crown Prosecution Service, London.
14. Criminal Justice Act 2003 s.34; The Frauds Trials Without a Jury Bill 2006-07.
15. Control and Management of Heavy Fraud and other Complex Criminal Cases, a protocol issued by the Lord Chief Justice of England and Wales (The Protocol) [2005] All E.R (EC) 10, 386 (MAR); Protocol for the Control and Management of Heavy Fraud and Complex Criminal Cases, http://www.judiciaty.gov.uk/docs/ controlandmanagementofheavyfraudandothercomplexcriminalcases1803.pdf; Criminal Procedure and Investigations Act 1996 ss.28-38.
16. The Protocol.
17. The Frauds Trials Without a Jury Bill 2006-07.
18. Judge no.5.
19. Judge no.6.
20. Judge no.5.
21. Judge no.7.
22. Judge no.4.
23. Judge no.7.
24. Miriam Peck, The Frauds (Trials Without a Jury) Bill 2006-07, Research Paper 06/57, (November 23, 2006) 19,
25. (quoting Hansard, HL Vol.651, col.793-4 (July 15, 2003)). The conviction rate of fraudsters of 86 per cent is introduced on July 15, 2003 in the debate by Baroness Kennedy of the Shaws and by Lord Thomas of Gresford and without a source relied upon for that percentage. It is an assumed fact that permeates the debate.
26. Lloyd-Bostock, "The Jubilee Line Jurors: Does their Experience Strengthen the Argument for Judge-only Trials in Long and Complex Cases?" [2007] Crim L.R. 255, 259.
27. T.M. Honess, M. Levi and M. Charman "Juror Competence in Processing Complex Information: Implications from A Simulation of the Maxwell Trial", [1998] Crim L.R. 763.
28. R. Mathews, L. Hancock and D. Briggs Jurors Perceptions, Understanding, Confidence, and Satisfaction in the Jury System - A Study in Six Courts, Research and Development Directorate of the Home Office, Home Office Outline Report No.05/04 (2004), p.4.
29. Judge no.6.
30. Judge no. 1.
31. T.M. Honess, M. Levi and E.A. Charman, "Juror Competence In Serious Frauds Since Roskill: A Research Based Assessment", [2003] Journal of Financial Crime 17, p.27, fn.38.
32. Stephen Wooler, Review of the Investigation and Criminal Proceedings Relating to the Jubilee Line Case (HM Crown Prosecutions Service Inspectorate (HMCPS1) 2006, Executive Summary at 2, 6.
33. Lloyd-Bostock, "The Jubilee Line Jurors: Does their Experience Strengthen the Argument for Judge-only Trials in Long and Complex Cases?" [2007] Crim.L.R. 255, 270.
34. Judge no.4.
35. Judge no. 1.
36. Judge no.9.
37. Judges nos 3, 7 and 9.
38. Judge no.7.
39. Judges nos 4, 5, 7.
40. Judge no.4, see Lloyd-Bostock, "The Jubilee Line Jurors: Does their Experience Strengthen the Argument for Judge-only Trials in Long and Complex Cases?" [2007] Crim. L.R. 255.
41. Judge no.9.
42. Judge no.3.
43. Judge no.8.
44. Judge no.5.
45. Judge no.7.
46. Judge no.9.
47. J. Vennard, "The Outcome of Contested Trials" in D. Moxon (ed.), Managing Criminal Justice (HMSO, 1985), p.121;
48. P. Darbyshire, For the New Lord Chancellor-Some Causes for Concern About Magistrates [1997] Crim L.R. 861 at 869.
49. J. Jackson and S. Doran, Judge Without Jury: Diplock Trials in the Adversary System (Clarendon Press: 1995);
50. S. Doran and J. Jackson, "The Case for Jury Waiver" [1997] Crim L.R. 155.
51. Judge no.4.
52. Judge no.4.
53. Judge no.7. This balancing of course must be compared to the perceived accountability of the professional judge. J. D. Jackson, "A professional Judge is accountable for his or her decisions much more than a lay trier of fact"-"Paradoxes of Lay and Professional Decision Making in Common Law Criminal Systems" [2001] 72 Revue Internationale de droit Penal 579, 13.
54. Protocol for the Control and Management of Heavy Fraud and Complex Criminal Cases, http://www.judiciary.gov.uk/docs/ controlandmanagementofheavyfraudandothercomplexcriminalcases1803.pdf. [accessed April 2007]
55. Judge no.3.
56. Private communication on file with author.
57. Judge no.3.
58. Judge no.6.
59. Judge no.7.
60. S. Doran, J. D. Jackson, M. L. Siegel, "Rethinking Adversariness in Non-Jury Criminal Trials", [1999] 23 American Journal of Criminal Law 1, 77, fn.8.
61. Judge no.9.
62. Judge no.2.
63. Judge no.5.
64. Judge no.7.
65. Judge no.8.
66. Judges nos 4, 6-8.
67. Judge no.8.
68. Lloyd-Bostock, "The Effects on Juries of Hearing About the Defendant's Previous Criminal Record; A Simulation Study" [2000] Crim L.R. 734 at 734.
69. Judge no.4.
70. Judge no.5.
71. Judge no.6.
72. Judge no.3.
73. Judge no.9.
74. Judge no.5.
75. Judge no.4.
76. Judge no. 1, a similar view was expressed by Judge no.7.