Law Report: Long trials avoided by severance: Regina v Kellard and others. Court of Appeal (Criminal Division) (Lord Justice Farquharson, Mr Justice Gatehouse and Mr Justice Scott Baker), 29 July 1994

In potentially long fraud cases, it is the duty of prosecuting counsel to consider carefully whether, in the interests of time and clarity, the case can be tried in parts and relevant evidence withheld, even if that would result in the case being weaker.

The Court of Appeal dismissed the appeals of Peter James Kellard, Edward John Dwyer and John Leslie Fitzwalter Wright against their convictions at Nottingham Crown Court (Mr Justice Potter and a jury) of fraudulent trading, making a false statement to a creditor, obtaining pecuniary advantage or property by deception, theft, furnishing false information, false accounting, and procuring the execution of a valuable security.

The essence of the case against the appellants was fraudulent trading in that they carried on the business of certain companies with the intention of defrauding creditors. After preparatory hearings, the trial began in 1990, and lasted 17 months, with interruptions for holidays. The court sat on 252 working days. More than 300 witnesses gave evidence in person or by written statements. The documents comprised more than 10,000 pages, but were eventually reduced to two core bundles.

The summing up lasted 11 days. Some important witnesses gave evidence over a year before the summing up began. The jury were sent out more than seven weeks after counsel's speeches and three months after the evidence was completed.

The appellants' main complaint was that, having regard to the length of the trial, an intolerable strain was imposed on all those taking part and it was not possible to have a fair trial.

Douglas Day QC, and Roger Offenbach (Offenbach & Co); David McEvoy QC, and Benjamin Nicholls (The Smith Partnership); Nigel Mylne QC, and Stephen Clayton (Offenbach and Co) for the appellants; Timothy Barnes QC, and Collingwood Thompson (CPS) for the Crown.

LORD JUSTICE FARQUHARSON, giving the court's judgment, said that the case bore the ignoble distinction of being the longest criminal jury trial in English history. In a potentially long criminal case a heavy responsibility lay on the trial judge and counsel, in particular prosecution counsel, to ensure that it remained manageable and of a dimension that enabled it to be presented clearly to a jury.

The judge's powers in this area were restricted. The difficulty over recent years had been the reluctance of prosecution counsel to cut down the size of the case by failing to agree to the severance of certain counts and by calling evidence which, although admissible on the remaining counts, was not essential to prove them.

Presumably counsel feared that if they did not call all the relevant evidence available to them, the accused might be unjustly acquitted. However, it was the duty of prosecution counsel to review the evidence in a long case and decide how much of it, even though relevant, could be withheld in the interest of time and clarity.

Furthermore, when the judge was minded to sever the indictment it was not appropriate for prosecution counsel to frustrate the judge's purpose by calling the evidence supporting the severed count or counts on the basis that it was relevant to those remaining.

There was no doubt that this trial was one of excessive length. The length of the trial in itself was not a sufficient ground for characterising the convictions as unsafe or unsatisfactory. If it were otherwise cases would have to be tried within a time limit.

The correct approach was to consider whether the length of the trial created a situation at any point whereby a fair trial was not possible. It was evident that the jury manifested no incapacity to understand the evidence.

The question of dishonesty was one a jury was particularly qualified to resolve. The complexity of the case did not result in any evident failure of understanding on the jury's part. The appeal must fail. Notwithstanding that result, it was clear that no trial by jury should be permitted to last this length of time. The risk of an accused not getting a fair trial because of the pressure on judge or jury was too great.

In any large fraud case - or any case of potentially unusual length - it was the duty of the prosecutor to consider carefully before the preparatory hearing whether the case could properly be tried in parts rather than as a whole. A solution could often by found by a consultation with defence counsel, and then an agreed proposal for severance could be submitted to the trial judge.

Prosecution counsel must be reconciled to the fact that their case might be weaker as a result of being split into a number of trials but that was the price that must be avoid the situation that arose here. Severance might not be possible in all cases but a determined effort to do so should be made where it would best serve the interests of justice and the taxpayer.