DPP's comments on possible upcoming banker trials

murrayp4

What are people's opinions on the DPP's comments last night that special procedures be used in financial crime cases. Also suggested was that people sitting on juries for such cases should have some kind of financial/business qualification



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DPP anticipates more financial crime cases
Sunday, 16 May 2010

The Director of Public Prosecutions has said exceptional measures, such as non-jury or specialist jury trials, may be needed in cases of major financial crimes.

James Hamilton said such a change may require a constitutional amendment as he would be surprised if difficulties did not arise in some cases in the next few years.

He also called for the introduction of a general Whistle Blowers charter.
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Speaking on 'The Week in Politics, to be broadcast tonight, Mr Hamilton said he anticipated more cases involving financial crimes as the country moved to an increasingly more robust system of financial regulation.

Such a trial could prove highly complex and last up to a year and that would create real difficulties for jury members.

johnnyskeleton

Why doesn't he bring a few such prosecutions before tried and true jury courts and see how he gets on.

It's a bit lofty talking about vastly complex year long trials when there are presumably much less complex and shorter cases that are not being investigated/prosecuted.

TheNog

johnnyskeleton wrote: »

Why doesn't he bring a few such prosecutions before tried and true jury courts and see how he gets on.

It's a bit lofty talking about vastly complex year long trials when there are presumably much less complex and shorter cases that are not being investigated/prosecuted.

Why have a year long trial in a financially complex case with a jury which has no idea whats going on?

Why waste the money tying up a court for that length of time?

Who would be happy being on a jury for anything up to a year?

Also the more complex a case, the easier it would be for the defense to create a doubt in a jury with no financial background or understanding of the financial sector.

johnnyskeleton

TheNog wrote: »

Why have a year long trial in a financially complex case with a jury which has no idea whats going on?

Why waste the money tying up a court for that length of time?

Who would be happy being on a jury for anything up to a year?

Thanks for taking the time to read my post, especially the part about bringing some financial fraud cases now which are slightly complicated, rather than seeking powers to bring in non jury trials just for the banter of it.

It's just like the gangland thing - this new power brought in to have gangland cases tried without a jury because they couldn't get convictions apparently. Since it was brought in last summer, only one case has been charged so far, and that probably could go before an ordinary jury.

Those powers were brought in based on well orchistrated public anxiety based on mere assertions - there was little or no evidence to suggest that ordinary jury trials were not effective.

Now they're talking about the dopey juries who can't do sums or take time off for a year (how would any trial take a year unless they are taking the piss, the longest criminal trial in Irish history was 3 months (and even then they got a jury)) to stoke public anxiety about this issue. But if they bring in these non-jury trials to cater for these ephemeral year long cases, the reality is they will use them for any sort of fraud case just because it is easier.

One of the greatest parts of our democracy is the jury trial. Sure, it means some people who are probably guilty don't get punished, but really that is a small price to pay. People lose sight of this and revert to ever more outrageous calls for blood and, in this case, summary trial.

The fact that judges may be more suceptable to political interference than random, interchangeable members of the public doesn't set off alarm bells for you either, no?

TheNog wrote: »

Also the more complex a case, the easier it would be for the defense to create a doubt in a jury with no financial background or understanding of the financial sector.

You say that like it is a bad thing. If you get rid of juries because they might have a doubt about a case, why not get rid of the whole process altogether? Summary trial by gardai on the basis of their say so. Show trials rubber stamping a foregone conclusion.

Don't be so dramatic, you may reply, we're not a totalitarian state by any means. Yet, we have legislation in place that allows people to be convicted on the mere say so of a garda. Not even that the person has actually done anything wrong, but that they are somehow participating in a bunch of badguys. And the less information that is given the better just in case it creates a "doubt" in those pesky judges.

That's why I am highly critical of the DPP's views on this topic. The persecution has such a difficult time with that whole evidence thing - there is not a shred of evidence to suggest that a jury is NOT capable of performing such a trial. The DPP didn't even go so far as to give his own evidence i.e. he didn't say that there were cases that he wanted to bring but couldn't because of this issue. Just brazenly put it out there like an old garda saying "I immediately smelled alcohol" or "based on confidential information received".

http://www.irishtimes.com/newspaper/ireland/2010/0519/1224270654987.html

James Hamilton wrote:

DPP James Hamilton said there were no cases pending at the moment which he had difficulty in prosecuting

So if it ain't broke don't fix, eh?

James Hamilton wrote:

“A three-judge court would give you the opportunity to put in a judge with a commercial background, as well as one with a criminal law background.

Forum shopping at its most blatant. Fundamentally, who gets to choose which judges sit? If I don't want judge X who has a commercial background but is staunchly pro-state, can I choose judge Y who is a bit more even handed?

James Hamilton wrote:

You would have to make an application to the court to refer a case to this court, on the grounds that a judge could not reasonably be expected to charge a jury, summarising the evidence. This might arise where there were very complex transactions with very complex financial instruments. It could be extremely difficult to explain that they were fraud.”

Of course, in order to explain this to the court you would have to go through most if not all of the entire case anyway. Any shorter and you are inviting the court to make a determination otherwise than on evidence (and judges cannot do so).

Finally, all this talk of one year trials does seem to me like a load of bunkum. Fyffes v DCC, one of the longest commercial cases in the state lasted 87 days, or c. 4 and a half months. That case also had a lot of technical legal issues, so arguably not all of that case had to go before the judge qua trier of fact. Similarly, there is no reason why a prosecution could not be run along the same lines (compared to 3 months which seems to be alright for jurors).

Other things that can be done is to break up the charges. If the DPP is really finding it hard to present a long complex fraud case, he can simply drop some of the charges. After all, a conviction for one or two counts could have the same practical effect as a conviction for fifty counts, and would limit the evidence to specific facts.

Ultimately, the setup of the Irish investigative system is paralysed by the scale of what has happened, but instead of getting the head down and trying to chip away and get a few convictions down, the DPP is drawing castles in the sky.

32minutes

i agree with a lot of what johnnyskeleton said, just because a case becomes complex or an issue tangled doesn't mean we undermine our legal system by augmenting it to give ourselves a better chance of securing a conviction. it smacks of a lack of respect for the rule of law.


One thing I was thinking of was a particularly dirty word: tribunal. if the d.p.p really do want a specialized route surely the tribunal system has to be an option ? just because the moriarty/mahon tribunals have become a circus doesn't mean they can't be effective. no ?

Tom Young

The T word is no longer used. We now use the E word (Enquiry) ....

The T or E would make findings of fact and recommend matters to the Courts. I think we have seen a recent pronouncement from the Super Court bench on this of late.

Tom

32minutes

Tom Young wrote: »

The T word is no longer used. We now use the E word (Enquiry) ....

The T or E would make findings of fact and recommend matters to the Courts. I think we have seen a recent pronouncement from the Super Court bench on this of late.

Tom

to my shame i wasn't aware of that, I thought the whole abbeylara judgement indicated that oireachtais enquiries coulnd't find criminal liability but a tribunal set up via legislation could.

In that case i'm not really in favour of an enquiry or finding of fact at all

Tom Young

http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/2b14cfb2d2db84258025770c0038d8eb?OpenDocument&Highlight=0,tribunal,Hardiman,2010

johnnyskeleton

32minutes wrote: »

One thing I was thinking of was a particularly dirty word: tribunal. if the d.p.p really do want a specialized route surely the tribunal system has to be an option ? just because the moriarty/mahon tribunals have become a circus doesn't mean they can't be effective. no ?

Arguably, and I make no assertion either way, a long judge alone trial will not have the same pressure to finish up speedily that a jury trial will. After all, a judge will be a judge for 10 years or more, but if the argument that jurors will be anxious to get back to their lives holds any water, it would be a great way to ensure that trials don't go too far off the rails.

32minutes

johnnyskeleton wrote: »

Arguably, and I make no assertion either way, a long judge alone trial will not have the same pressure to finish up speedily that a jury trial will. After all, a judge will be a judge for 10 years or more, but if the argument that jurors will be anxious to get back to their lives holds any water, it would be a great way to ensure that trials don't go too far off the rails.

there is always that risk but i lifted this quote from the above judgement

"Equally, I wish urgently to recommend to those responsible for the establishment of tribunals a book “Illinois Justice” by Kenneth A. Manaster (University of Chicago Press, 2001). This is an account of an inquiry presided over by the future U.S. Supreme Court Justice John Paul Stevens into suspected bribery by banking interests of Justices of the Illinois Supreme Court. The inquiry began in mid-June 1969 and was over by the end of July 1969. Stevens announced the terminal date before he began his work. He insisted on the narrowest possible terms of reference. He brooked no extension of them. The cost of his six week inquiry was a miniscule fraction of any of our tribunals"

i would always have been of the opinion that tribunals were a good idea if used correctly, we just happen to have done most of them terribly

TheNog

32minutes wrote: »

i agree with a lot of what johnnyskeleton said, just because a case becomes complex or an issue tangled doesn't mean we undermine our legal system by augmenting it to give ourselves a better chance of securing a conviction. it smacks of a lack of respect for the rule of law.

I never said that nor would I support such a move. A non jury would give a better chance of a fairer trial but only if a case was so complex it would be difficult to be grasped by most lay people.

I would put myself as one of those lay people.

johnnyskeleton

TheNog wrote: »

I never said that nor would I support such a move. A non jury would give a better chance of a fairer trial but only if a case was so complex it would be difficult to be grasped by most lay people.

I would put myself as one of those lay people.

But where is the evidence of it being a fairer trial? Hundreds of years of experience tels us that 12 good citizens, honest and true, can reach a better verdict than a judge siting alone. Yet bizzarely the media will pick up on every difficult acquittal and ignore any poor conviction. A lot that appears in our news is biased towards the view that "criminals" should not get a fair trial, that it's better that 11 innocent men go to jail than a guilty man walk free and that a reasonable doubt or constitutional rights are nothing but a mere technicality.

Yet the dpp and political parties gain favour by eroding such long held rights.

I despair sometimes.

32minutes

TheNog wrote: »

I never said that nor would I support such a move. A non jury would give a better chance of a fairer trial but only if a case was so complex it would be difficult to be grasped by most lay people.

I would put myself as one of those lay people.

I think the jury selection process in itself takes care of some of these problems, plus if these deals are sooooo complicated that a layman couldn't possibly be made to understand them with expert testimony/prosecutorial initiative, doesn't that in itself suggest that there might be a reasonable doubt that the law was broken ?
but do you think the d.p.p. not only wants a judge but also a judge who can portray the requisite commercial acumen ? coulnd't the same arguement be made for cases that concern complex legal queries eg provocation defence in murder or others