By Nuala Haughey, Advocacy and Research Manager
WITH REPORTS THAT the trial of three former Anglo Irish Bank executives could run for up to six months, valid concerns have been raised about the availability of jurors for such a lengthy period.
At the latest hearing in the case earlier this month, Judge Mary Ellen Ring flagged up the threat that the forthcoming trial could be put at risk if too many jurors were to become unavailable. Under the current system, a 12 member jury can lose two members and still continue. But if a third person left, the trial could collapse.
“If a jury collapses because of the unavailability of jurors, recommencing immediately would be problematic,” the judge said. Judge Ring queried whether, given the expected duration of the trial, there had been any consideration given to amending the Juries Act to allow for alternate jurors to be sworn in to replace those who cannot continue to serve.
The judge’s concerns are all too real in white collar crime trials which can involve highly complex transactions and masses of evidence; in the Anglo case, some 24 million documents have to be sifted through before the trial can even get underway next January.
In the UK, the burden of prolonged jury service sensationally took its toll in 2005 when the longest British jury trial to date collapsed after almost two years, partly due to jury problems. The jurors in the trial of men accused of bribing London Underground officials had been beset by illnesses and financial problems – one juror subsequently complained that she had been forced to postpone her wedding, miss out on promotion and pay rises at work and borrow money for her mortgage due to late jury payments.
The dramatic collapse of the trial – which cost the British taxpayer £60 million – provoked fierce debate about the future of juries in complex fraud trials in the UK. This debate has been taking place here too. The former Director of Public Prosecutions, James Hamilton, told the Burren Law School three years ago that we need to give ‘serious consideration’ to whether jury trials are appropriate for alleged fraud offences.
The concerns are not just about the unreasonable burden that lengthy trials impose on jurors’ personal and working lives. Supporters of alternatives to the standard lay jury system say the volume and complexity of evidence in serious fraud cases may simply be too difficult for non-specialists to understand.
Alternative proposals include judge-only trials, the use of specialist jurors such as those with financial qualifications, or the introduction of expert assessors to sit with juries. Each of these arrangements comes with its own set of practical pros and cons. For example, trial by judge alone would no doubt bring a much brisker pace to proceedings, but there is a risk that it could expose the judiciary to accusations of political bias, particularly in high-profile cases. Expert assessors might bring welcome expertise, but exactly how would they be selected in a way that would be fair and acceptable to both defence and prosecution? And of course the principled question remains – why should someone accused of a complex fraud not have the same right to have their honesty judged by their peers as someone accused of theft?
The Anglo investigation has already presented law enforcement agencies with unprecedented challenges: the Ofﬁce of the Director of Corporate Enforcement has described it as the largest and most complex case it has undertaken to date. The authorities have reacted to some of these challenges by introducing new protections for whistleblowers and new powers for investigators to compel ‘reluctant witnesses’ to cooperate.
Transparency International Ireland believes that additional measures could also help improve the investigation and prosecution of white collar crime. These include the use of Deferred Prosecution Agreements which encourage a company to make full disclosure, pay hefty fines, undertake reforms and agree to face prosecution if it fails to satisfy the terms of the agreement.
There is no doubt that the scale and complexity of the Anglo case will continue to pose fresh challenges for prosecutors. Not least of these will be how to present evidence to jurors about complex transactions and financial instruments in a way which they will understand. Thanks to a recent legislative change, the jury in the Anglo case may be supplied with charts, diagrams, graphics or summaries of evidence to help its deliberations.
While the impact of this modest measure is yet to be felt, there is no doubt that concerns will remain about how lay juries cope with serious fraud cases. This is inevitable as our criminal justice system tries to evolve to keep up with the complexities of modern white collar crime.