After years of hearing commentators unfairly criticise juries for the
failings of incompetent fraud prosecutions, it was great to see our US
colleagues use a jury to good effect.
Getting a fraud conviction out of a jury should not be difficult but there
are some key points that prosecutors should consider.
If you only have the evidence of a tainted co-accused do not place the
evidence in front of a jury! You need documentary or electronic evidence to win
in fraud trials, for example video evidence of people removing documents, emails
etc. If you have a substantive offence, such as false accounting, then charge
it. If you do not have a substantive offence do not take a punt and charge
conspiracy to defraud because you will lose.
In my experience juries get decisions right. Often we believe that somebody
has committed a crime but, if there is not evidence beyond reasonable doubt,
then that person should not be convicted.
There are not two standards of dishonesty i.e. there is not a higher standard
for people who commit complex frauds. In the UK virtually every word in the
Theft Act is defined in subsequent sections – what constitutes property, intent
to permanently deprive, etc. The word ‘dishonesty’ is deliberately not defined
but left to the ‘man on the London Omnibus’ based on the circumstances of the
case. If the prosecution cannot simplify a fraud case to show an action was
dishonest then that prosecution will fail.
My experience of viewing personnel files as part of investigating fraud cases
over the last 20 years is that middle and senior management are still dodging
out of jury service.
If this was tightened up (as in the US) it would be irritating for firms and
individuals in the short term, but in the long run it would be good for the
City. This added wealth of experience would enhance fraud juries and make more
managers aware of fraud.
If you cannot establish your case beyond reasonable doubt then the correct
forum is the civil courts where you only have to prove your case on the balance
of probabilities. You shouldn’t take away an individual’s freedom unless you can
prove your case beyond reasonable doubt.
If you have a strong case backed by first rate prosecution the jury system
will give you the right verdict, as the Black trial has proved. Tinker with this
system at your peril.
Simon Bevan is the national head of BDO Stoy
Hayward’s fraud services unit
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