Why (some) fraud prosecutions fail

Purpose - The paper aims to demonstrate the causes of failure of some fraud prosecutions. Design/methodology/approach - The paper provides a review of common contexts within which prosecutions of allegations of fraud are brought and discussion of the factors which influence the prosecutor, the investigator, the defence, the trial judge and the fact‐finders. Findings - Several factors are common to many fraud prosecutions which, taken together, make these cases difficult to try and to obtain convictions. Many fraud prosecutions fail because the egregious length of the investigation and trial process jeopardises the mental health of some defendants, preventing them from being tried at all. The mass of documentary evidence adduced can cloud the key issue of dishonesty. Excessive splitting up and “pruning” of the case with a view to making the trial shorter may obscure the essential elements of the case. Effective management of the trial process is sometimes lacking. Presentation of complex facts and egregious amounts of documentation to a lay jury can contribute to the inordinate length of the case and the proposition is made that an alternative tribunal, without a lay jury, may eliminate many of the factors which contribute to the failure of major fraud trials. Practical implications - The conclusion is drawn that tribunals sitting without juries would have the effect of shortening the trial without lessening public confidence in the criminal justice system in this very limited class of case. Originality/value - The paper draws together several key factors found in the author's experience as Director the Serious Fraud Office and as Chairman of the Fraud Advisory Panel which distinguish fraud prosecutions from any other types of criminal case and provides leads for improving future prosecution and trial technique.