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