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Giving the jury a fair hearing

Updated Monday 21st October 2013

Has the idea of a jury of your peers had its day?

Image: Oxford Crown Court by KaihsuTai under CC-BY-SA licence

Transcript of discussion between Gary Slapper and John Connor

Gary Slapper
Hello, I’m Gary Slapper, Global Professor at New York University, and a visiting professor at the Open University. With me today is the distinguished British barrister and leading QC, John Cooper, and we’re in my office in Bedford Square and we’re going to be talking about the jury, an institution of great importance in Britain and over 800 years old, and it’s generally seen as a very desirable feature of the constitution. Lord Devlin once referred to it as “the lamp that shows that freedom lives” and he observed that the first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will, and next would be to overthrow or diminish trial by jury “because”, he said, “no tyrant could afford to leave a citizen’s freedom in the hands of ordinary people”. Today there is a significant degree of despair at a range of jury decisions, and outrage at the conduct of some jurors and in one recent case from 2013, prosecution of Vicky Pryce, the judge said, talking about what he regarded as the ineptitude of the jurors - demonstrated to him by a series of questions they asked him before they could arrive at their verdict - and he said that it was astonishing and showed that they had absolutely fundamental deficits in understanding, and he’d never seen anything like it in 30 years, so it made good headlines. I think there are possibly two ways of reading that. The fact that as a judge he had not seen any such ineptitude in 30 years is surely one way of describing how excellent an institution it is, if you’re choosing random sets of 12 people, you know you’re calling, summoning 480,000 a year and one judge after 30 years says he got a particularly, you know, imbecilic group of people, or something, then that is a good sign. John, do you think so?

John Cooper
Well let me also defend that particular jury because some of the questions they were asking were perfectly proper questions. I mean, for instance, they were asking what reasonable doubt was. Now you will know as well as I, Gary, from your work, there have been articles written, papers written, research undertaken as to what that means and great debate indeed has ensued as a result of it. So in some respects their questions, when looked at carefully, and not through the prism of a red top newspaper, that is a tabloid newspaper, they were very sensible questions. But your general point is a sound one. There are hundreds and thousands of people that serve on juries and do a wonderful job, and I say God save the jury!

Gary Slapper
Mm, it’s moving into an era which is so far perhaps insufficiently provided for by general precepts about how juries operate and finer regulations because it’s moving into an era of electronic communication which allows things to happen that didn’t happen before, when juries could be more easily sequestered from public opinion and discourse. How do you think the age of Twitter and Facebook has affected jury operations?

John Cooper
Well I’m a great fan of the social media, Twitter and Facebook, you know I’m very active, particularly on Twitter and I find it a stimulating environment, but in one way you have to exercise common sense. The social media generally and the internet have a lot of information on it, and it does present challenges to courts as courts in Britain, for instance, have been grappling with, with jurors doing their own extramural research. It’s very important, one of the fundamental principles of the criminal justice system is that the trial is adjudicated upon by the evidence presented during that trial, and not outside of that trial, and the courts nowadays are coming down very hard on jurors who, despite being given very clear warnings not to do their own research, do so. So yes, there are challenges but the law has to live up and meet those challenges. But I say one further thing as well, we need some perspective here. The jury trial accounts for about 2% or so of criminal trials in this country. The vast majority of trials, 98% or so, are conducted by magistrates without a jury so, again, let’s get some perspective here. It’s 2% of criminal trials that take place, things go wrong but, nonetheless, it doesn’t take away the general principle that you enunciated at the start of our discussion, that one is entitled to be judged by our peers. Take that away, it’s very dangerous stuff.

Gary Slapper
Mm, and it’s a great testament in some ways to the operation of democracy, especially because of the majority decision system, the most historically important “ask the audience”!

John Cooper
Well it is important that justice is upheld. I am presently involved with a murder trial in the Old Bailey, the central court in the UK, and there’s a plaque on the wall in the Old Bailey commemorating some famous jurors, as you’ll recall, Gary, that about 200 or so years ago returned a not guilty verdict and were told by the judge: “Go back to your room and there you will stay until you return a guilty verdict”, and there they were left almost starving for a matter of days. You’ll be able to fill in the detail, Gary, on that, but the fact of the matter is they held out and still maintained a not guilty verdict, and there’s a plaque in the Old Bailey as we speak commemorating the steadfast nature of that jury.

Gary Slapper
Yes, absolutely, Bushel’s case….

John Cooper
That’s the one.

Gary Slapper
So an extremely important development in the history of law in Britain and many of the other countries across the world that developed this particular type of principle, and in 1670 then, a couple of religious dissidents, William Mead and William Penn, (Penn went on to found Pennsylvania), were prosecuted wrongly for a form of holding a disorderly meeting and they were subject to an unfair trial, and by standing out for a verdict that the jurors wanted, their foreman, Mr Bushel, pioneered a point of enormous, incalculable significance. Because it splits the decision of guilty or not guilty from the state, which is prosecuting, and puts it over demotically to the people, and that point not only plays now throughout the British trial system in a jury context, but you can think of the same sort of thing if you take a couple of steps back looking at, John, what you were mentioning earlier, the 98% of criminal cases that are tried by magistrates, most of whom are ordinary lay magistrates, very few of whom are district judges and trained judges and lawyers. So, you can say then that, what with the 98% of cases being resolved by ordinary people in the magistrates’ courts, and the jury deciding all the cases in the crown courts, British justice is very observably demotic.

John Cooper
What’s interesting there though, Gary, with that is one of the observations regularly made in this debate, is that one of the advantages of the jury system is that they can look beyond the law and come to moral decisions, and ignore the law, ignore the directions, and there are instances where jurors have done that: a case some time ago when a man was accused of spying by the state and the jury just were not having that. On the law he was probably under law guilty, but the jury found him not guilty, and overlooked the law, and there’s a big debate going on at the moment about juries in this country, in the UK – is that a good or bad thing? I happen to think it’s a good thing that the jury can sometimes quality control the law.

Gary Slapper
Mm. It’s often said of the jury that this is a very fair institution, that when you have 12 people, no-one really knows where the number 12 came from, it’s associated with so many things: hours in a day, months in a year….

John Cooper
Oh it’s interesting I’m doing a case overseas and for instance in Gibraltar there are nine jurors so in one sense….

Gary Slapper
There’s change, change and six jurors in Florida… Fairness is something which is often associated with the jury because even if you do have one in two, or sometimes, maverick people that the preponderant view of 10 or a complete majority of people is a very good way of deciding something. How far these things are dealt with fairly in a British jury context can’t really be told because it’s still illegal to do research by asking people who have served on juries about that, but in a brilliant piece of very thorough research, Professor Cheryl Thomas from University College London looked at a great number of cases, 68,000 cases from previously decided cases and looked at 1,000 jurors, surveying them about their experiences, and came to some conclusions that many might find odd or at variance with the information that they’ve seen if they’ve only been following things i at a low level of news reporting. So she found that jurors almost always reach a fair verdict, fair in the sense that they are not exercising any discernible prejudice, that they convict in two-thirds of cases. Again, if you think that the tests in the criminal cases that have to be gone through to get something, the realistic prospect of conviction, and that it’s in the public interest to prosecute, and all of the work that has to be done, you’d think that the sort of default mechanism that that makes it quite likely and yet in a third of the cases, which seems like a reasonable safeguard, a third of the cases it results in acquittal, that jurors, white juries, all-white juries do not discriminate against defendants from black and minority ethnic , backgrounds, and a number of other findings supporting this idea of fairness. Is that your experience?

John Cooper
Yes, of course, with something as wonderful as the jury one has to take the risks and one cannot impose anything upon a jury, other than the evidence in the law and then trust them to get on with it in their jury rooms. I’ve never been on a jury. It’s interesting, but certainly in the United Kingdom the law changed recently whereby lawyers and judges can sit on juries. I’ve always thought it to be rather unfortunate if I’m presenting a case and suddenly I see a judge in front of me who’s on the jury, but nonetheless, it’s an enfranchising process…

Gary Slapper
You’ve had that experience yet?

John Cooper
Not yet, I know people that have had that experience... but it’s as fair as the society that breeds it. Now you just have to take the risk. I’m not going to be as naïve as to sit in front of you now and say that every now and then you don’t get bigoted jurors, you don’t get jurors with closed minds, but just as much as you get jurors with open minds and people that want to do their duty, and it’s often described by judges as the most important compulsory duty that a civilian has outside of wartime, serving on a jury, and it is, and jurors on the whole take it seriously. Some don’t, we’ve got to be realistic about it, but for all that, the strength of the jury is that it reflects society and it is the voice of the people judging their peers, in 2% of cases. I can live with the glitches for the principle that it brings.

Gary Slapper
There are cases now following from the innovation of the Criminal Justice Act in 2003 that can be tried, and have been tried, without a jury in the rare and unusual and extreme cases where there seems to be strong and overwhelming evidence that juries have previously, in a given case, been subject to inappropriate treatment, mistreatment, blackmail or bribery, and there was a case in 2009, the Peter Blake case, Peter Blake and Others, resulting from a large robbery in which the judge had to play the roles of judge and jury. In this case it raises from then on the interesting technical question about how far such a thing is possible. Can a judge advise him or herself about the matter of, say, inadmissible evidence, having seen it, and then exclude that from his or her consideration at the point, even though it’s installed in part of their mind in their earlier thinking, and differentiate between the skills and duties required of a juror and those he or she is exercising as a judge – does that seem to you to be such a big obstacle do you think…?

John Cooper
One of the directions given to jurors by judges is that the jury is the judge of the fact, and the judge is the judge of the law, and they have two distinct roles to play. And yes, it is perhaps , superficially difficult to understand that a judge can take on that sort of dual-headed approach, but lawyers are trained to do this, we do it day in, day out. There are legal submissions made throughout a case that a judge might uphold, which are detrimental to a defendant but, at the end of the day, judges are expected and lawyers are expected to take each particular case on its merits. It’s not so much of that that worries me but, nonetheless, it does worry me that the principle of non-juries is in some way enshrined in our legal system. If it is impossible for there to be a trial by a jury, for reasons you’ve given, we should look at the system that isn’t protecting the jurors, we should look at the system that allows that to happen. Again, an analogy of that is the argument that jurors aren’t able to understand complex fraud cases, and therefore that they should be non-jury as well. Well what I say to that is this, it’s not the jurors’ fault they can’t understand the issues, it’s the lawyers’ fault because we are expensively trained over many, many years by people like yourself to articulate our arguments clearly and digestibly to people who are non-lawyers. Now if we can’t do that as lawyers, that’s down to us, it’s not down to the jury and, in my view, I’ve done a number of complex fraud cases, including what we call paperless cases …. we’re using computers and graphics, and the jury has more than adequately dealt with it. So I’m of the view that if there is a problem with getting a fair trial, the answer is not to get rid of the jury, the answer is for the lawyers to come up to the plate and, and get on with it. It is very important in my view to maintain that principle.

Gary Slapper
Yeah, I think that point about complexity is a very compelling one because it raises the question of whether it would ever be fair in any circumstances to convict a man or woman on the basis of a charge and an allegation which is simply too incomprehensible, too difficult to grasp for ordinary people. Well, it’s been a great pleasure discussing these points with you. Thank you, John.

John Cooper
And with you as well. Thank you.

 

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