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Trial by jury: the importance of “ordinary” jurors

17 February 2012 8 Comments

Jury 3 150x150 Trial by jury: the importance of “ordinary” jurorsWest Coast Surfer / Mood Board/Rex Features
By Felicity Gerry

You can never write too much about the importance of trial by jury, particularly since there are moves afoot to restrict it. This month is no exception as Professor Richard Dawkins advocated a scientific resolution for criminal proceedings in The New Statesman, and The Times published an article by David Pannick QC effectively supporting the removal of jury trial in less serious cases.

Mr Pannick QC’s article (Trial by jury but you don’t trust jurors?, Times Law, 2 February 2012) suggested that jury trial “with all its imperfections” is not an essential protection of liberty. Professor Dawkins in his article (O J Simpson wouldn’t be so lucky again, 23  January 2012) said that courtroom procedures make a mockery of the phrase “beyond reasonable doubt”. Both of them risk feeding the opinions of those who lack any practical understanding of the jury trial process. 

Mr Pannick QC suggests jurors are “ordinary” but not in the ordinary sense of the word, the implication being that they might struggle with serious cases. Experience shows that provided a case is properly presented, nothing could be further from the truth. Many “ordinary” people are bright and well educated. Jury notes commonly indicate a comprehension of law and fact in serious cases. More importantly, in judging their fellow man or woman, jurors bring to court their experience of real life.

I don’t know how many privileged people have had sex in an alley or taken cocaine or carried a knife for protection or, God forbid, had sex with a family member, but an understanding of real life, in all its shades, helps when considering issues in a criminal trial. Many is the well educated judge shocked by the common place behaviour of ordinary witnesses. It takes the ordinary and practical experience of (for example) inner city life to properly judge the actions of an individual defendant, whether that person is accused of stabbing an adulterous husband or stealing fags from Tesco’s.

Mr Pannick QC notes that some people do not trust juries with criminal convictions. The example he gives of a contemptuous juror Googling a defendant’s history in fact related to a previous acquittal and was in direct contravention of judicial direction. The old and daft example of a jury using a Ouja board is rare & should not discolour the public duty that many people do every day.

Where criminal convictions are relevant we trust juries to understand why they have that information; where not, they have no need to know. Acquittals are never relevant unless evidence from the previous proceedings is relied on and the odd rogue juror should not put a proper system at risk. If your son was on trial for an allegation of underage sex you’d trust another Mum far more than a trained judge or Magistrate who hears these cases every day and knows the statistics. You want a fair trial decided by people who can understand the language & actions of a teenager, properly directed on the law by a judge & properly presented by qualified advocates.

Unfortunately, Mr Pannick is mistaken when he suggests that we call a superficially attractive but misleading argument a “jury point”. A “jury point” is an argument on the facts which might be very relevant to their consideration but is not a matter that amounts to a reason in law to withdraw a case from their determination.

Mr Dawkins suggests the perfectly ludicrous idea that a scientific evaluation of verdicts could only be properly made if two juries heard the same case separately, little recognising, it seems to me, that the art of the jury system is that it allows 12 people to view the witnesses and properly debate the evidence before reaching a conclusion. As Francis Fitzgibbon QC puts it so eloquently in his blog Nothing like The Sun responding to Professor Dawkins’ piece in the New Statesman; “A jury trial is not a mathematical or scientific process. When deciding if someone has told the truth (the invariable key issue) we weigh up everything they have said for consistency and for reasonableness and for its fit with known facts about the case. All humans and their stories tend to be unreliable, even when they don’t deliberately set out to mislead. The criterion of judgment that makes the jury so valuable is human experience. A jury is not a computer which mechanically processes information”. 

Reaction to Mr Pannick’s article on twitter was disappointment that he appears to have begun so well by recognising that the judgment of the defendant’s peers is, in Lord Devlin’s famous words, “the lamp that shows that freedom lives” but ended by concluding that for some minor cases the right to jury trial could safely be removed.

In my view, that is really the thin end of the wedge. A trial is a hearing where an ordinary person is accused of something they deny. The prosecution must prove they’ve done it. The judge and lawyers weren’t there so the decision is made on what witnesses say happened, together with other evidence. Witnesses are ordinary people. Who better to judge than their peers, whatever the allegation? Juries are judges of the facts who are not employed by the State. They bring that independence of thought and spirit to a court and in my experience take their task extremely seriously, giving each case a great deal of thought and attention. 

Again Mr Fitzgibbon QC puts it so well: “The process disgusts those who prize efficiency above all other virtues because it is slow, cumbersome and gives unpredictable results. But it has legitimacy. A group of citizens, not state appointees, decide whether other citizens have committed crimes. For all its imperfections and occasional failures (human, all too human), the jury system works well and has earned its place at the heart of our criminal justice system”. Frankly, despite the August positions held by Mr Pannick QC and Professor Dawkins, in my humble but experienced opinion of jury trials from murder to minor theft,  it’s cheap at half the price to know that individual liberty is protected by a bit of ordinary reality, rather than consigned to an ivory tower!

This blog appeared in Felicity’s weekly blog Scuttlebutt for Criminal Law and Justice Weekly

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8 Comments »

  • Patrick Cullinane said:

    In the public interest and the interst of justice, Trial by Jury must be restored immediately in the UK for the following reasons, which is only the tip of the iceberg: –

    The Police in the UK are so corrupt that they will NOT investigate my case, as they were involved in unlawfully evicting me from my home on 30 March 1999: –

    On 6th December 1996, I was unlawfully bankrupted by a single Registrar in Chambers: = behind closed doors. There was NO record made of this sham hearing, as there is NO transcript available for this FRAME-UP. Also there was NO independent witnesses allowed in the room. I was bankrupted for £68,831.31 and HMRC had NO proof of debt whatsoever. My house was worth £230,000 and I had a £26,000 mortgage. Therefore, I should never have been bankrupted. It was ALL FRAUD and CORRUPTION.

    The following is what Summary Justice did to me. By the way, I was on PAYE on an Emergency Tax Code, where HMRC owed me thousands of £s in tax rebates. And they still do to this day: –
    http://www.guardian.co.uk/commentisfree/2012/feb/10/harry-redknapp-taxman-hmrc?commentpage=2#start-of-comments

    Trial by Jury is democracy and Trial by Judge is tyranny.

    Rupert Murdoch and his lieutenants never gave the victims of Summary Justice, like myself, a voice, because they promoted Summary Justice for their own ends. Murdoch and his employees corrupted the Police with bribes and, unless you could afford to pay the Police they would NOT look at a corruption case like mine. Notwithstanding that my case has cost the taxpayer millions of £s to date.

    Report by Phillip Inman of The Guardian, Financial Section, Monday 25 August 2008
    “Evidence put to the high court shows that Cullinane, far from owing tax, was due a rebate.”
    http://www.guardian.co.uk/money/2008/aug/25/tax.taxandspending1

    The police have told me on VIDEO that the robbery of my home and possessions is a civil matter: -
    http://www.youtube.com/watch?v=IPtkWWcrkjM

    How more corrupt can our Courts and Police force get?

  • michael said:

    We should always keep in mind that juries are effectively concerned with two things – upholding the law and justice which are not necessarily the same thing. Sometimes it is justifiable that they give more weight to justice than to the law or indeed the evidence. What matters is the right thing !

  • Jean James said:

    There appears to be a global movement afoot to erode Common Law rights. This is happening in both the UK and Canada at the moment, and is obviously being directed with a global agenda. I don’t know who Secretary of State for Justice, Kenneth Clarke is working for, but it is not the British people.

  • Colin Peters said:

    Trial by a jury of our own peers as decreed in the Magna Carta should be the right of every living person and, in the interests of justice and humanity, is far far preferable to trial by judge.
    So often, lawyers and judges can have their own agendas which are not always in the interests of those lowly souls who appear before them.
    As I was made to realise quite a few years ago, – When the interests of justice conflict with the interests of lawyers and judges then injustice is inevitable.
    My own experiences are a prime example of this realisation.
    I was up against a fraudster/bad debtor who had been aided and abetted in his deceptions by lawyers and professionals.
    At trial, 5 years later, the judge had little choice but to reject all of the deceptions that had got my opponents legal aid certificates, but,he was not interested in me, not interested in justice, but only interested in covering up the wrongdoings of his professional peers.My website, ‘Colin Peters before the Court of Public Opinion’ has been viewed by thousands and I have ensured that all of those featured therein have been made aware of it.
    Their silence tells me much.
    Had I been before a jury of my own peers instead of the self serving and incestuous members of our legal and professional system, then no way would the crimes of fraud and deception against me have succeeded.

  • Kenn d'Oudney said:

    THE ETERNAL CRITERION OF JUSTICE.

    All societies, regardless of time or place, race, culture, religion, background or nationality, govern by their Justice System. The power to punish carries with it ALL power. It remains a universal eternal criterion of justice that the validity and justice of laws and all acts of their enforcement require to be JUDGED, not by those who make and enforce the laws (government), but by those who voluntarily agree to abide by the laws (all the adult citizens).

    All who do not uphold this tenet are then promoting unlawful rule by a tyrannical élite. Unwittingly, or for self-advantage, they serve despots, abet tyranny, and are the criminal enemies of freedom and equal justice.

    Because the fairness and justice of the laws and all acts of law enforcement require to be judged by those who agree to abide by the laws, according to natural law, common law, constitutional law, and the paramount requirement for Equal Justice, the Common Law Trial by Jury of ordinary adult citizens in which THE JURORS JUDGE THE JUSTICE OF THE LAW AND EACH ACT OF ENFORCEMENT, is the only justice system which is legal and just everywhere, for all process of law, civil, criminal and fiscal.

    That is WHY Common Law Trial by Jury is installed by all legitimate constitutions as the sole justice system for all crimes (unimpeachable), civil, criminal and fiscal.

    On the aforesaid grounds, there is NO LEGAL enforcement of ANY law but by the Trial by Jury.

    Never let it be forgotten that throughout the History of the World right up to date, ALL the greatest CRIMES have been and are being perpetrated by, and in the name of, government.

    It is uniquely in the nature of Trial by Jury that juries fulfil the function and purpose of law in a democratic society. These are to maintain Justice by protecting the citizen from injustice and crime of all kinds, whether perpetrated by the state or by other citizens; and to uphold the rights, freedom and legitimate interests of all.

    “Among the Gothic nations of modern Europe, the custom of deciding lawsuits by a jury seems to have prevailed universally.”
    See Millar’s second volume of The Historical View of English Government, p. 296; & Vol. 2, Palgrave’s Rise and Progress of the English Commonwealth; pp. 147-8, etc.

    The Juror is SOVEREIGN in Trial by Jury. Trial by Jury defines democracy, sine qua non. Within a Hellenic or modern democracy:

    The Jury Comprises the Supreme Legislature and Judicature.

    THIS CASE RULING EXEMPLIFIES DEMOCRACY AT WORK:

    “If the jury feels the law is unjust, we recognise the undisputed power of the jury to acquit even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.”

    “If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”
    United States v. Moylan; U.S. Fourth Circuit Court of Appeals, 1969, 417 F. 2d 1002.

    Neither in Britain, the United States, Australia, Canada, New Zealand, nor in all of Continental Europe and elsewhere, have legislatures ever been invested by the People with authority to impair the powers, to change the oaths, or abridge the jurisdiction of jurors to govern government; nor to remove the universal Right of the accused to the Trial by Jury of peers for any charge or offence whatever, however serious or trivial.

    Today, U.S. v Moylan is not exemplified by the modus operandi of courts. Democracy has been overturned by miscreant politicians and judiciary, and the genuine Trial by Jury is no more (ref. also the illegally denied Juror’s DUTIES definitive of Trial by Jury).

    People, TO SAVE YOURSELVES AND OTHERS GET ACTIVE and peacefully resist and en masse overwhelm THE ILLEGALITY OF THE STATUS QUO. Join the non-profit http://www.democracydefined.org We the People’s Campaign for RESTORATION of Legem Terrae: Constitutional Common Law TRIAL BY JURY.

  • Sabine K McNeill said:

    Patrick’s and Colin’s horrendous experiences are among MANY that, to me, illustrate the following development and trends:

    * civil servants don’t care if they commit crimes; it’s more important that they cover their buddies, their old boys’ network and their Freemasonic bretheren – at all cost

    * they don’t NEED to care, for they are immune to prosecution, thanks to Royal Charters; see http://bit.ly/cD1LMQ

    * it is deliberate policy of the New World Order to rule by ‘money’ rather than ‘law’ or accountable institutions with public ‘servants’

    * the gradual privatisation of corporations that are too big too fail means their rule by force – no personal responsibility required and nobody is ‘above’ them

    * such private legal corporations won’t allow for juries

    * hence our only hope are courts in cyberspace – with polling juries…

    Already now: nobody is responsible. Not our remit. Not my job.

    It would be nice to think that Juries could be made fashionable again thanks to the net!!!

  • philip McCormack said:

    Latimer has said the carbon monoxide poisoning of Tracy(12 year old daughter) at his farm near Wilkie, Sask., was a mercy killing because of her years of pain and difficult surgeries.

    Read more: http://www.ctv.ca/CTVNews/TopStories/20101129/robert-latimer-granted-full-parole-101129/#ixzz1n9YN7Ah
    He was found guilty of second degree murder. The jury recommended one year in prison and one year house arrest. The case was appealed by the prosecution in the Supreme Court and he was given a 10 year sentence.
    Common law Trial by jury is Trial by country: If it can be overturned by the”Supreme Court” that is illegal, the people are supreme, if not then T by J is not True Common Law Trial by Jury, it has become SUMMARY judgement. The jury forewoman later made it known that the Supreme Court “Judgement”) was not what the jury intended.
    Pannick and Dawkins do not understand Common Law Trial by Jury and the Supreme Court is NOT supreme; THE PEOPLE ARE SOVEREIGN. Dr Philip McCormack

  • Paul Talbot-Jenkins said:

    The right to justice and trial by jury are the inherited rights of every citizen, for under Magna Carta “We have granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be held and held by them and their heirs, of us and our heirs forever.” What followed in Magna Carta was the guarantee that no one is to be transgressed against by the monarch nor any official of the state without the judgment of his peers, twelve good persons selected for the purpose. “Neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt etc.” Thousands of people have been and are being made bankrupt without any recourse to trial by jury. Many bankruptcies are illegal for one reason or another, mainly because either the individual or the business/company has assets (chattels) of value far in excess of the debt. I some cases bankruptcy is declared by a single judge where there is no debt; this is to stop litigation by the citizen against corrupt lawyers and bankers, as in my case.Investigation into the workings of the courts and the Insolvency Service reveals that the trustees in bankruptcies seldom make, maintain or keep records of their trusteeship. They fail to keep the court records up to date if at all, and they fail to account for money had and received from the estate of the bankrupt. The procedures for the administration of the estate of a bankrupt are adequately stated in the Insolvency Act and the Enterprise Act, so why is tge Secretary of State for Business Industry and Skills doing nothing about these gross and festering injustices? Had I had the benefit of a trial by jury the outcome would have been very much different to the £80,000 we had to pay to get the illegal bankruptcy annulled. The litigation in which I was involved concerned the dealings of a solicitor who was also a magistrate and under sheriff, who was protecting his fellow Freemasons in destroying our damages claim, stealing money from our accounts in collusion with our erstwhile NatWest bank manager. Even the Law Society lawyers appointed to defend him placed forged documents into the court and made fraudulent pleadings in his defence. A jury would have seen through this masquerade for what it was.
    In the end, the solicitor was struck off, but stayed with the firm as a consultant; the bank manager was made to retire early at 56 on a full pension. The firm of solicitors is no longer in existence, such is the power of protest and leafleting and the internet.