Concerns over the suitability of juries to evaluate serious, complex fraud trials have persisted for decades. Retired senior judge Sir Brian Leveson QC’s Independent Review of the Criminal Courts – Part 1, published this summer, sets out a thorough critique of the UK’s entire system for trying defendants, and makes a variety of recommendations for improvement, some of which are quite radical.

In serious, complex fraud trials, Leveson notes, the use of juries has been subject to extensive reviews over more than 40 years, beginning in 1983 with the landmark Fraud Trials Committee set up by Lord Roskill.

Following its work, Roskill proposed a definition for such trials to acknowledge that their complexity stems from markets, or parts of the business community, acting “according to concepts which bear no obvious similarity to anything in the general experience of most members of the public”.

Since then, high-profile fraud trials have continued to strain juries to the limit, highlighting issues not just around jurors’ understanding of the evidence, but how extremely lengthy proceedings that tend to typify major fraud prosecutions can impact their personal lives.

With that in mind, and in an echo of Roskill, Leveson states: “I recommend that serious and complex fraud cases should be tried by judges alone. Eligible cases should be defined by their hidden dishonesty or complexity that is outside the understanding of the general public.”

Has Leveson paved the way for a more workable system for trying serious, complex fraud?

Decisive impact

For Phil Southall, Director of Ellacotts Forensic Services, the debate around juries’ presence on complex fraud trials is itself rife with complexity.

As Chair of ICAEW’s Forensic and Expert Witness Community, Southall has accrued considerable experience as an expert voice in court. First of all, he stresses, the pressure on every type of non-lawyer participant in a fraud trial can be immense. “I’ve been involved in trials where, for fear of personal safety, witnesses have had to remain unidentified,” he says. “If witnesses have to be anonymous for fears of personal safety, can juries really provide an independent view?”

Focusing on jurors, Southall points out that because of how laws are drafted, fraud cases regularly involve multiple indictments. Juries must weigh the nuances of each one separately. “That often requires them to understand not just complex laws, but complex accounting, too.”

Amid the gruelling longevity of serious fraud trials, there is a risk that jurors’ attention could lapse at critical moments. An expert witness may spend significant time preparing to lay out an opinion that could have a potentially decisive impact. But from a jury’s perspective, that witness’s time on the stand could be just a small fraction of the overall proceedings.

“In week three or four of a five-week trial involving complex financial allegations, I gave evidence on a Friday afternoon,” Southall says. “At that point, could I rely on every juror to concentrate on the wealth of graphs and financial details I presented? I don’t know. But the jury’s response to the material was going to determine the verdict and perhaps the length of the defendant’s prison sentence.”

Another issue is that following a trial, expert witnesses may privately query a jury’s verdict, feeling that it does not match up with their more practised grasp of the facts. In the same trial as above, the defendant faced 11 indictments, five of which Southall – who had been instructed to represent the accused – agreed would probably stick.

“The jury did reach a guilty verdict on five counts,” Southall says. “But only two of those were on my list. So, they determined guilt on three counts that, as an expert, I didn’t think the defendant was responsible for. That just goes to show how complex this can be.”

Specialist knowledge

Insights puts it to Southall that, even in light of juries’ knowledge gaps in fields such as fraud, it could be seen as patronising to question whether they are able to live up to the role of deciding defendants’ fate as ‘comparable’ peers.

“I don’t think that’s patronising at all,” Southall says. “The people who commit these crimes are incredibly sophisticated. It’s not being disrespectful to jurors to recognise that fraudsters’ methods can be so complex and specialised that they’ve managed to evade the detection of highly skilled professionals, often for years. On top of that, the law itself can be ambiguous about what is or isn’t a crime and even lawyers with specialist knowledge can disagree.”

In terms of other important factors to consider, Southall points out that many accounting standards are principles based, thereby allowing for judgement, which in turn leaves room for grey areas. Perhaps more crucially, though, he notes that no jury would ever be exposed to the entire factual matrix behind a fraud case, purely because of the practicalities. In cross-examination, jurors hear a selection of evidence, based on areas where the respective legal teams think they can score wins.

Asked about the scope for subject-matter advisers to assist jurors’ understanding of certain terms or concepts, Southall notes: “That would raise questions over the extent to which juries are forming their own decisions.”

If Leveson’s proposal comes to fruition, then, what should the ‘judge only’ model look like? “Judges assigned to these trials would have to be subject-matter specialists,” Southall says. “We could even end up with a specialist bench.”

He adds: “In the transition, judges would clearly have to get up to speed, but because of their knowledge of the law and relevant experts, they would be more prepared than jurors to identify what they don’t know, and which questions they’ll need to ask to fill their knowledge gaps.”