Can juries really no longer be trusted on complex cases? - Spear's Magazine

Can juries really no longer be trusted on complex cases?

Since the humiliation of the bungling jurors in the Vicky Pryce case, juries have taken quite a hammering. Are Joe and Jane Public really incapable of understanding complex judicial proceedings, as some experts have been suggesting?

Panel Beating

 

Since the humiliation of the bungling jurors in the Vicky Pryce case, juries have taken quite a hammering. Are Joe and Jane Public really incapable of understanding complex judicial proceedings, as some experts have been suggesting? 

 

IT WAS NOT the most glorious moment in the millennium-long history of English justice. One of ten questions passed to the judge by the jury read: ‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it either from the prosecution or defence?’ 

In terms as immoderate as the law allows, the judge replied: ‘Firmly no. That is because it would be completely contrary to the directions I have given you for anyone to return a verdict except a true verdict according to the evidence.’ The jury failed to reach a verdict — perhaps the meaning of the word ‘verdict’ buffaloed them — and was discharged. Vicky Pryce, Chris Huhne’s ex-wife and co-conspirator in their ignominious speeding points plot, faced a retrial, whereupon she was convicted by a jury with a clearer sense of the English language.

Why rehearse this sorry tale? Because if jurors cannot understand the judge’s elementary instructions (they also asked for ‘reasonable doubt’ to be defined: ‘doubt which is reasonable’, said the judge), what hope do HNWs on trial for complex financial crimes have that a jury will know the difference between LIBOR, SIBOR and HIBOR?

 

TWELVE ANXIOUS MEN

A leading fraud QC, regularly instructed by City law firms and with particular expertise in financial services, explains: ‘You can end up with a less able jury trying the most complex cases. It is difficult because frequently the most talented people from whom the jurors are drawn are people with good jobs [who will struggle to get time off], unless you happen to be a civil servant or working for an enormous company where no one will notice if you’re off for three months.’ 

Business tycoon Asil Nadir must have had concerns about the jury’s understanding of the case being put against him during his trial at the Old Bailey last year. Over the seven months that this enormously complex case lasted, the original jury of twelve men and women was reduced to ten because of illness. It was left to this diminished jury to consider thirteen separate charges of theft against Nadir, who stood accused of stealing tens of millions of pounds from his Polly Peck conglomerate. The complexity of the proceedings (the charges went back more than two decades) was reflected in the amount of time the jury spent reaching their verdicts: seven days to decide on four of the charges, and a further two to decide the remaining nine. Eventually they found him guilty of ten of the charges and acquitted him on three.

Asil’s son, Birol Nadir, certainly had doubts that the jury was up to the job of understanding such a complex case. After its verdicts came out, he gave a furious interview to the Irish Independent claiming his father had been ‘one hundred per cent’ sure he’d be acquitted. ‘The case was too complicated for laymen and the jury didn’t adhere to the jury’s directions,’ he told the newspaper. His conclusion was that ‘juries aren’t capable of making a decision on these things’. 

Illustration by Kyle Smart

DEEP POCKETS

Help is at hand for jurors in such intricate trials. To diminish the risk of misunderstanding, juries are increasingly being served with written instructions, either on points of law or on what facts of the case to focus when reaching their verdict. Ironically, some lawyers feel that these can actually make matters more complicated, and for jurors trying HNW defendants in difficult cases written instructions might just add confusion.

In the vocal era of the 1 Per Cent/99 Per Cent divide, there is another concern for HNWs on trial: that their wealth might be held against them, even seen as a reason to punish them. Although no formal research has yet been done into the ‘deep pocket hypothesis’, some barristers are concerned.

Bartholomew O’Toole of 5 King’s Bench Walk explains how jurors’ knowledge of a defendant’s wealth and background might subtly affect their verdicts: ‘In cases that involve dishonesty — theft or fraud, for example — if the evidence reveals the defendant’s assets, education and/or employment, then juries may expect higher standards of those with more of these advantages than poorer, less educated or unemployed defendants. 

‘So for example, a person living modestly with no assets apparently committing a sole benefit fraud might be given the benefit of the doubt in contrast with a person with plentiful assets committing multiple benefit fraud.’ 

O’Toole argues that this is not prejudice as such: ‘It’s just that juries are generally less prepared to accept that the accused was unaware of the facts constituting the fraud or that he/she did not believe that he/she was behaving dishonestly by the standards of ordinary honest people.’

 

WHAT IS GUILT?

Simon Sandford, also of 5 King’s Bench Walk and with expertise in serious fraud, had his very own version of the Pryce jury’s Q&A: ‘I had an extraordinary case where we had a note from the jury that seemed to be asking, “What’s the difference between guilty and not guilty?” They asked other extraordinary questions, too. In the end the judge took the view that the jury should be discharged.’ 

Despite such incidents, however, Sandford takes the view that such occurrences are ‘freak’ cases: ‘On the whole, the impression I get is that jurors follow the directions they’re given and appear to understand them. You’ve got to assume they do.’

Others aren’t quite as trusting. Either because they doubt juries’ abilities or because they’re concerned about being on the receiving end of wealth-bashing, some HNW defendants take measures to avoid jury trials completely. 

When the News of the World ran a story claiming motorsports tycoon Max Mosley had conducted a Nazi-themed orgy with five prostitutes, Mosley didn’t hit them with a libel action but instead sued for breach of privacy. (The judge found that there was no evidence of a Nazi theme at the orgy.)

There was speculation that this was because he knew that the former would be tried by a jury and the latter just a judge; as Peter Preston wrote in his Observer blog in March 2011, ‘Mosley could have taken the libel route, but that — among other things — would have meant defending his S&M predilections before twelve good men and women. Breach of privacy, though, involved just a judge.’ 

One wonders if Mosley had heard of the ‘deep pocket hypothesis’ before he decided just which legal action to take.

 

DOCK TALES

Asil Nadir: Nadir was found guilty in 2012 of stealing tens of millions of pounds from his Polly Peck conglomerate.

Bernie Madoff: In 2009, Madoff pleaded guilty to defrauding his clients of $65 billion in the largest Ponzi scheme in history.He was sentenced to 150 years in prison.

Max Mosley: Mosley successfully sued the News of the World for breach of privacy in 2008 after the paper claimed that an orgy with five prostitutes was Nazi-themed. 

 

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