Can the length of trial amount to an abuse of process – a recent example from a British overseas territory
July 2019 | SPECIAL REPORT: WHITE-COLLAR CRIME
Financier Worldwide Magazine
July 2019 Issue
The question of how to limit the length and complexity of criminal trials arises frequently in cases of financial crime. In the UK, rigorous case management is standard. Prosecutors are expected to control the remit of difficult cases, for example by running several smaller trials as opposed to one large one, and limiting the scope of the allegations. There is also an expectation that there will be dialogue between the prosecution and the defence from the outset, identifying common ground and issues in dispute.
However, these case management powers and procedure rules do not apply in the British Overseas Territory of the Turks and Caicos Islands (TCI). This was recently highlighted in an application to stay a high-profile trial, on the grounds that, due to its length and complexity, it had become unmanageable.
Michael Misick was premier of the TCI between 2003 and 2008. Along with four of his cabinet ministers, three local attorneys and the wife of one of the cabinet ministers, Mr Misick is currently on trial for allegedly having accepted and laundered millions of US dollars in bribes, in exchange for providing favourable treatment to foreign developers.
In 2014, the Crown applied successfully for the case to be tried without a jury on the grounds that it was unusually complex, both factually and legally. Harrison J, a former president of the Court of Appeal of Jamaica, was appointed as trial judge.
The prosecution opened its case on 18 January 2016 and closed it on 20 September 2018, having called over 200 witnesses and produced nearly 3000 exhibits over the course of 378 sitting days.
Following the close of the Crown’s case, all defence teams supported an application filed by counsel for the third defendant, in which it was submitted that the trial should be stayed on the grounds that it had become unmanageable. Further abuse submissions were advanced by other defence teams, on points that included the right of the defendants under the Constitution of the TCI to a fair trial within a reasonable time, and in relation to disclosure.
The application was primarily based on the first of the two well-established grounds for staying a trial, namely that it would be impossible for the defendants to have a fair trial if it continued. However, submissions were also raised in respect of the second ground, that a stay is necessary to protect the integrity of the criminal justice system.
It was argued that the prosecution failed to make the trial manageable at the outset, in that: (i) having 17 counts on the indictment was excessive; (ii) the prosecution was wrong to proceed to a single trial with all nine defendants; (iii) the number of development projects covered by the indictment should have been reduced; and (iv) the amount of material on the disclosure schedules was too great to enable the defence to properly consider it.
It was further argued that the prosecution and the trial judge failed to ensure the trial’s continuing manageability, and that both the amount of material relied on by the prosecution and the duration of the trial to date were excessive.
The court’s attention was drawn to authorities on delay and it was submitted that while such authorities relate to pre-trial delays, the principles were equally applicable on the basis that the delay generated throughout the trial itself made it impossible for the defendants to continue to have a fair trial.
The defence relied on a series of cases to illustrate the undesirability of a lengthy trial. These included R v Simmons, a trial that lasted 81 days, and where the Court of Appeal held that the trial judge had a duty to ask the prosecution to recast their case if it appeared that the approach proposed would involve undue burdens on the court and on jurors in particular.
Other cases referred to included R v Thorne, a trial that lasted 111 days and where the Court criticised the overloaded indictment, the excessively lengthy submissions, and the “verbosity” of counsel, and R v Cohen, a trial that lasted 184 days, and which was described as “a costly disaster”, “an ordeal” and “a punishment”.
The defence and the prosecution both relied on the case of R v Kellard, a trial that lasted 252 days and included the calling of 163 live witnesses and over 10,000 pages of evidence. When considering whether the length of the trial in itself is a sufficient ground for characterising convictions as unsafe or unsatisfactory, the Court was “firmly of the opinion that it is not”, and went on to say: “If it were otherwise, cases would have to be tried within a time limit. The correct approach is to consider whether the length of the trial created a situation at any point whereby a fair trial was not possible. Does the case reveal any feature which tends to establish that any of those taking part in the trial were by reason of its length unable to discharge their function?”
The defence submitted that the approach outlined in Kellard was no longer good law, drawing attention to a report published in the aftermath of the Jubilee Line trial (Regina v. Rayment and others), a trial which lasted 271 days and which culminated in collapse and the acquittal of all defendants. The report, published in 2006, following an inquiry, highlighted various factors as having contributed to the length of proceedings, including the illness of a defendant, holidays, paternity leave and frequent legal arguments, all of which meant that it took much longer to get through the evidence with the jury than was either usual or desirable. Also criticised was the prosecution’s decision to include a particular count relating to a vast set of documents, prompting the defence to spend a great deal of time exploring both the actual and potential use of these documents in detailed, lengthy and repetitive examination with witnesses. The report made clear that the fundamental reason the trial had to be terminated was because it had gone on too long, and no one could expect the jury fairly to evaluate the evidence.
In further support of their contention that Kellard was no longer good law, the defence drew the court’s attention to the Protocol for the Control and Management of Heavy Fraud and other Complex Criminal Cases, handed down with three accompanying Practice Directions by the then Lord Chief Justice Lord Woolf in March 2005. Central to the Protocol was its determination that no trial should be permitted to exceed three months or an outer limit of six months, save in exceptional circumstances.
In its reply, the prosecution noted that despite the criticism levelled at judges in the courts of first instance for failing to adequately case manage, and at prosecutors for overloading indictments, the courts in the cases of Thorne, Cohen and others had repeatedly declined to characterise the length of a trial in itself as sufficient grounds to find that a conviction was unsafe.
Relying on the case of R v Soares and Others, the Crown submitted that the correct approach remained as in Kellard, namely: could the judge say that the case had reached a point where he, as both the judge of law and fact, or any other party in the case, was unable to discharge their function? It was submitted that the fact that the abuse arguments were accompanied by detailed defence submissions of no case to answer indicated the evidence was clearly manageable and capable of analysis.
In the context of the Protocol, Practice Directions and enhanced case management powers available in the UK, the Crown also drew attention to the trial of Edwin and Lorraine McLaren who were tried at the Glasgow High Court between September 2015 and May 2017. The jury heard evidence over 340 days, during which a total of 157 witnesses gave live evidence, and there were 1585 documentary productions. Ms McLaren lodged an appeal against conviction, in part on the grounds that the trial was of such length that it amounted to a breach of Article 6(1) of the European Convention on Human Rights, both because of the length of the trial, and also because of the effect of the length of the trial on the jury’s ability to remember and understand the evidence. Leave was refused, a decision that is presently subject to further appeal.
The Crown submitted that the McLaren case was evidence of the fact that lengthy trials still occur in the UK, despite the extensive efforts to prevent them, and each should be considered on its own facts and circumstances.
The Crown further submitted that the defence, having exercised their right, existing in the absence of any Protocol or Practice Direction, to put the Crown to strict proof had necessarily resulted in the need to call many more witnesses than would have been the case if evidence that proved uncontroversial had been agreed. While this was a stance available to the defence, it did not follow that the Crown should be obliged to reduce the scope of its case as a result.
In his ruling, Harrison J expressed the view that the length of the trial was neither the fault of the prosecution nor the defence, and noted various issues that had caused the trial to be so long, including his own decision to sit in three-week sessions, each followed by a week off, and the prolonged impact of Hurricane Irma in 2017. He also noted the first defendant’s change of representation after the trial had begun, and various periods of illness.
Concluding that the trial could not be categorised as unmanageable, the learned judge refused all applications to stay. The trial continues.
Carolina Cabral is a barrister at 23 Essex Street. She can be contacted on +44 (0)20 7413 0353 or by email: email@example.com.
© Financier Worldwide
23 Essex Street