The questions that the jury asked the judge
at the Vicky Pryce trial before he discharged
them have caused yet another big discussion
about the merits and demerits of jury trial.
Some of the questions were pertinent but some
suggested the jurors, or some of them, had
completely failed to understand what their
duties were supposed to be.
Though juries have their passionate defenders,
including many lawyers who appear in front
of them and judges who preside at jury trials,
it’s impossible to deny that in its present
form jury trial has some grave defects.
It’s very slow: the Vicky Pryce trial, first
time round, took six days for a case in which
the evidence was relatively simple and the
legal issues likewise; it’s very expensive,
partly because it’s slow and partly because
it happens in the crown court which is an
expensive tribunal; and it is surprisingly
accident prone.
In 1995 there was a murder trial after which
it was revealed that some of the jurors had
sought to make contact with the spirit of
the murder victim by using a Ouija board,
on account of which the Court of Appeal had
to quash the conviction and order a retrial
at the end of which the new jury convicted
without the benefit of spiritual intervention.
There was the case in 1981 where, on the 12th
day of a fraud trial, the judge had to discharge
the jury because some young women on the jury
had got drunk celebrating their 21st birthday
during the lunch hour and were seen to be
making sexual advances to a male juror which,
surprisingly perhaps, he was not at all happy
with.
Two years ago there was the “Crapland”
case as it was called, a prosecution for some
fraudsmen for running a fraudulent Christmas
site called “Lapland”, and hence its unattractive
nickname, for which the conviction was eventually
quashed when it was revealed that one of the
jurors had been exchanging texts with her
boyfriend in the public gallery in order to
find all the things which they weren’t supposed
to hear that were happening when they were
out.
I have a file of these cases collected over
many years and I could give a great many other
examples.
And then there are what in air safety parlance
are called the “near misses”; there are
plenty of those.
A couple of years ago there was the trail
of Delroy Grant, accused of 29 appalling rapes
over ten years in which he had broken into
old people’s houses and raped them.
His DNA was found at the scene of every crime
and his defence was that during his marriage,
which had broken up many years before, his
wife had been saving samples of his semen
in order to rush out to the scenes of these
burglaries and deposit his semen in order
that he should later be framed for the offence.
After eight hours of deliberation, the jury
eventually convicted but only by a majority
of ten to two.
Two jurors thought that Grant’s preposterous
defence left them with a reasonable doubt.
If a third had joined them then there would
have been a hung jury, just as in the Vicky
Pryce case.
What’s the problem here?
It’s inherent, I believe, in putting 12
inexperienced people, selected completely
at random from the population, and leaving
them to decide without anyone to watch over
them and without their having to give any
reasons for their decision at the end.
There’s an obvious problem of quality control.
Most people who are called for jury service
are serious, or at any rate enough of them
are serious enough to see that the serious
ones predominate.
But, as the horror stories I have just given
you show, this is by no means always so and
sometimes irresponsible people, or very ill-informed
people, or very timorous people, predominate.
To make a decision on an important criminal
case where the evidence has been contested
it’s necessary to have a number of qualities.
You have to be reasonably intelligent, you
have to be fairly mature, you have to have
a sense of civic responsibility and you have
to have some degree of confidence, and this,
sadly, is plainly not always the case.
Could something be done to improve the position?
Yes, various things might be possible.
Instead of simply selecting juries out of
jurymen who are drawn at random from the electoral
roll, people could apply to do jury service
and be trained for it.
Or we could have juries of laypeople sitting
with a judge to deliberate with them, as happens,
in fact, in most places in continental Europe
where they have juries which operate in that
kind of way instead of the way we do it here,
in France and in Germany and in Italy, for
example.
The problem about no jury reasons is that
we don’t know at the end of the trial whether
the jury convicted on intelligible grounds
or unintelligible grounds or for acceptable
reasons or for unacceptable reasons.
The jury gives no reason for its verdict of
guilty or not guilty.
No questions are permitted afterwards that
might infringe the secrecy of the retiring
room.
Not only are no questions permitted, it’s
actually a criminal offence to try to ask
them.
This is worrying because it could mean that
convictions are brought about for irrational
reasons, as well as acquittals, and there’s
no way of finding out.
In 2004, the House of Lords in the leading
case of Mirza said, “We refuse to make any
investigation into the secrecy of the jury
room”.
Apparently the secrecy of the jury room is
a quality so important that it has to be maintained
even at the risk of miscarriages of justice.
Should juries be required to give reasons
for their decisions, as professional judges
do and as benches of lay magistrates have
to?
Some people say no, it would be wrong because
it would wipe out something called jury equity”.
That’s to say the facility of a jury to
acquit in the teeth of the law and the teeth
of the evidence as a moral comment on a law
they disapprove of or a prosecution they think
was brought in an oppressive fashion, as famously
happened in 1985 when a jury acquitted Clive
Ponting of Official Secrets Act offences when
he had leaked information about the sinking
of the General Belgrano during the war over
the Falklands to an MP in a way which was
embarrassing to Mrs Thatcher.
But if we think that jury equity is important
to maintain, surely we could keep it if juries
were required to give reasons when they convict
but were still permitted, if they wish to,
to acquit without giving reasons.
Defenders of juries typically put forward
the argument that juries probably get it right
most of the time and, as the journalist Simon
Jenkins said about that, “Anyone who ran
a hospital, a school, a railway or an army
on such a basis would be thought insane.”
Surely we ought to consider seriously ways
of improving our current version of jury trial.
Suggestions that we should interfere with
jury trial usually produces the objection
that it’s interfering with an institution
which has existed since Magna Carta in 1215.
Actually, jury trial wasn't created by Magna
Carta in 1215 and it has very greatly changed
over the years.
A very major changed happened in 1972 when
the property qualification was abolished.
Before 1972 you could only serve on a jury
if, in addition to being on the electoral
roll, you satisfied a property qualification,
which essentially meant that you owned property
or you were a householder and, as Lord Devlin
famously said in 1955, this resulted in juries
that were predominantly “male, middle-aged,
middle-minded and middle-class”.
This was obviously unacceptable but in a crude
way it did at least ensure that juries usually
consisted of people who were mature and had
some degree of self-confidence.
After we changed that in 1972, defence lawyers
started, for the first time in modern history,
making use of peremptory challenge to challenge
off juries people who appeared to be intelligent,
and hence it became known that if you wanted
to avoid jury service you should put on a
suit and turn up to jury service with a copy
of the Daily Telegraph or the Financial Times
under your arm.
This became such a scandal that, following
the report of the Roskill Committee in the
1980s, peremptory challenge had to be abolished.
As the playwright Shaw famously told us, “Every
profession is a conspiracy against the laity”,
and for that reason it’s essential to maintain
lay participation in criminal justice.
It’s too important to leave to the professionals
alone.
Traditionally we’ve had another form of
very effective lay participation in justice:
Justices of the Peace in the magistrates’
courts.
And it surprises me how successive governments,
while reluctant to tackle the jury question,
because it’s emotive, have been busy quietly
shutting down the lay magistracy by closing
the magistrates’ courts and by appointing
district judges, professional judges who replace
magistrates’ courts whilst directing the
business of the magistrates’ courts increasingly
to the police to impose fixed penalty notices
instead of having prosecutions.
In the magistrates’ courts, the Vicky Pryce
case would have taken a morning or a day at
the most and surely that is the tribunal in
which a case like that should have been tried
and that surely is the jurisdiction that the
government should be developing, not seeking,
as it seems, to close down.
