Trial by Jury - The Case for the Defence
By Paul May on 24/08/14Share:
In her 1 August article about the jury system (see here) Charlotte Rowles reported on research into how juries arrive at their verdicts. She pointed to cases such as the notorious 2013 aborted trial of Vicky Pryce which highlighted defects in the way some juries approach their duties. In calling for reform of the jury system (and more research) we should, however, avoid advocating its erosion or abolition. There are those within the criminal justice system who believe allowing lay jurors selected at random to determine the facts in serious cases acts is an impediment to the administration of justice. Such claims should be resisted.
Many critics of the jury system base their objections more on uninformed supposition than hard evidence. I would argue that the circumstances and history of the English legal system render the jury’s role in deciding issues of fact largely beneficial. This doesn’t mean every facet of the jury system must be treated as sacrosanct and inviolate. In particular, the jury’s passive and inarticulate role at trial and restrictions imposed by the Contempt of Court Act 1981 present a potential barrier to justice and should be reformed.
Abolition or retention?
The notion that the jury’s role in determining questions of fact in the English trial system is inimical to the administration of justice has attracted considerable official support over the years. In 2003, former Home Secretary, Jack Straw MP failed in his attempt to abolish ‘either way’ cases whereby defendants may elect for trial by jury instead of summary trial.
Senior police officers have for decades asserted that criminals routinely escape justice thanks to perverse jury acquittals. Having been involved in campaigns for innocent Irish prisoners, I particularly recall the comments of former Metropolitan Police Commissioner Sir Robert Mark who said in 1973 ‘acquittals relating to those whom experienced police officers believe to be guilty are too high to be acceptable’. One year later, Sir Robert’s ‘experienced’ officers ensured the conviction of the entirely innocent Maguire family by wholesale fabrication of evidence.
Since 2007, a provision in the Criminal Justice Act 2003 allows for trial without jury in the Crown Court if there is a 'real and present' danger of jury tampering. The first such trial took place in 2010 in a case involving a robbery at Heathrow Airport.
Some jury defenders are apt to make grandiose claims with little concern for rational analysis. Thus, Lord Devlin averred that among a tyrant’s first acts would be: ‘to overthrow or diminish trial by jury… more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives’.
Such florid language conceals a logical nonsense. If jury trial is freedom’s sine qua non then jurisdictions lacking jury systems must necessarily be unfree. Most democratic countries either don’t operate a jury system or confer limited powers on lay trial assessors. There’s no reason to believe that the quality of justice is inferior in these jurisdictions as a result.
Nor does trial by jury constitute a bulwark against tyranny. In 1923, Japan – then ruled by an oppressive militarist regime – adopted trial by jury in criminal cases. Post-war reforms rejected re-introduction of a jury system which was widely regarded by Japanese democrats as having been a failure.
The jury’s role
The English jury’s origins lie in the 12th century. While judges undertook the role of deciding questions of law, local juries determined issues of fact. Initially, jurors pronounced only on matters personally known to them. Hearings as to the facts and the law often occurred at separate times and locations. Gradually, juries were invested with the role of deciding facts outside their personal knowledge.
The percentage of cases now heard before juries is minuscule. Juries sit on less than 1% of all criminal trials. In the civil courts, the right to jury trial only exists in cases of fraud, malicious prosecution and false imprisonment. Since 2013, actions for defamation - previously heard before a jury - are mostly decided by judges.
Juries also sit at coroners' inquests into deaths in custody or those raising public safety issues.
In the criminal courts, the jury system only applies to cases tried on indictment in the Crown Court where – if convicted - the accused may face a significant custodial sentence. The experience from common law jurisdictions which have adopted juryless criminal trials such as ‘Diplock’ trials for scheduled offences in Northern Ireland, the Special Criminal Court in the Republic of Ireland and the Singaporean system indicates that judges sitting alone in the adversarial system become progressively case-hardened and prosecution-minded.
Jurors are often described as deciding only the facts. In reality, they decide a mixture of fact and law. Juries must apply their understanding of the law as explained by the judge to the facts set out at trial for instance applying their comprehension of the necessary mens rea (guilty purpose) of a criminal offence to the facts before them.
Critics accuse juries of various defects: that acquittal rates are unacceptably high or conversely jurors are too ready to convict leading to miscarriages of justice. It’s further argued that juries can’t understand expert evidence or that they adopt a capricious attitude to their duties
Do the facts bear out any of these propositions? Some critics cite the initially surprising statistic that two thirds of cases committed for trial in the Crown Court where the accused entered a not guilty plea result in acquittal. Thus, it’s claimed that juries are biased in favour of defendants irrespective of the evidence. Closer examination reveals a different truth. In 2012-13, there were 18,202 Crown Court acquittals but two thirds of these were because the case was discharged by the judge or s/he directed the jury to find the defendant not guilty. In only a third of acquittals did jurors reach their own verdict. Rather than querying juries’ fact-finding capabilities, critics might better spend time investigating why a scandalous proportion of prosecutions comprises Crown evidence which is so flawed (or non-existent) as to compel the judge to stop the proceedings.
Miscarriages of Justice
In light of miscarriages of justice, some commentators argue that the trial juries were at least partly to blame. Even a staunch jury defender like Lord Devlin in his book The Conscience of the Jury said of the Guildford Four case ’It was of course a jury that returned the verdicts’.
Knowing they were innocent, it’s understandable that some wrongly convicted prisoners blame juries for the injustice inflicted on them but jurors are under a duty only to consider the evidence presented at trial. Indeed, it was the jury’s failure at Vicky Pryce’s trial to grasp that essential principle which persuaded the judge to stop the proceedings. One of the innocent Irishmen known as the Birmingham Six said to me when he was still in prison that if instead of sitting in the dock, he put himself in the position of a juror at his 1975 trial and his only knowledge of the case was the evidence placed before the jury, he too might have returned a guilty verdict. Attempts to implicate juries in wrongful convictions ignore the truth that in nearly every instance, jurors were fed false evidence by police, prosecutors, expert witnesses and others in authority. In most cases, the Crown deliberately withheld material supporting defendants’ innocence. In such circumstances, those responsible for the administration of the criminal justice system actively obstructed the jury from determining the facts.
Much attention has focussed on juries’ alleged incapacity to evaluate expert evidence. The 1986 Fraud Trials Committee under Lord Roskill proposed abolition of jury trials in complex cases. Sceptics presume judges are naturally better able to understand expert evidence. Why should this be so? The vast majority of the English judiciary originate from narrow educational and socio-economic backgrounds. Judges generally have little advanced education or training in science let alone finance. A few acquire expertise during their careers at the Bar but anyone spending time in the English courts comes to despair at the judiciary’s inability to grasp even basic scientific concepts.
Numerous examples come to mind. At the 1987 Court of Appeal hearing in the Birmingham Six case, clear evidence was presented that test results on swabs taken from the men’s hands were wrongly interpreted by the forensic scientist concerned. Lord Lane and his brethren had enormous difficulty comprehending the crucial distinction between tests for 'exclusivity' conducted on the swabs (indicating possible presence of nitro-glycerine alongside a huge range of innocuous nitrite-releasing substances) and tests for 'specificity' (which would show the presence of nitro-glycerine alone). A jury containing even a single member with basic scientific training would have understood this evidence.
More recently, the trial judge’s summing-up in the case of former nurse Colin Norris wrongly convicted in 2008 of murdering patients with insulin was described by the Court of Appeal as a ‘tour de force’. It was nothing of the kind and indeed the judge breezily admitted his ‘last experience of chemistry was …rather a long time ago’.
When it comes to understanding expert evidence, the jury’s randomness lends it strength. Drawing membership from a wide range of people and backgrounds increases the possibility that one or more jurors can apply their knowledge and experience. For example, a radio enthusiast juror (and not the coroner or counsel) showed government forensic witnesses were talking scientific claptrap at the inquest into the 1988 fatal SAS shooting of three IRA members in Gibraltar.
Notwithstanding the excessive length of many fraud trials, at the heart of every case lies the question whether or not defendants’ acted dishonestly – a matter which the overwhelming of jurors are able to decide. Lord Justice Auld in his 2001 review of the criminal courts recommended that in fraud and other complex cases, trial judges might sit without a jury but with a panel drawn from experts in the particular field. This would be a truly horrifying prospect leading to more miscarriages of justice. Attention would be better directed towards considering why such trials last so long.
Do juries approach the task of deciding the facts and assessing the evidence seriously? A major obstacle to answering this question is the Contempt of Court Act 1981. Section 8 prohibits disclosure ‘of statements made, opinions expressed, arguments advanced or votes cast’ by jury members. This provision was introduced after Attorney General v New Statesman and Nation Publishing Co Ltd  1 All ER 644 where a juror at the trial of former Liberal Party leader Jeremy Thorpe revealed details of the jury’s deliberations. Section 8 makes legitimate research into jury discussions complex and difficult and should be reformed.
In 1992, as part of his work on the Royal Commission on Criminal Justice, Professor Michael Zander conducted an extensive study. Carefully worded questionnaires were sent to jurors, legal practitioners and defendants. Over 22,000 replies were received: 97% of jurors thought all or most of the juries on which they sat understood the evidence at trial. More tellingly, 94% of prosecuting counsel also held this opinion. 93% of trial judges believed the jury would have understood any scientific evidence. In less than 4% of cases did barristers and judges feel the jury’s verdict was inexplicable. Research using shadow juries in simulations of major fraud trials found that the substantial majority comprehended the evidence. In 2010, a two year study by Professor Cheryl Thomas commissioned by the Ministry of Justice found virtually no evidence that decisions reached by juries are racially biased.
There are occasional cases such as R v Young (Stephen)  2 WLR 430 (where four jury members had used a ‘ouija’ board purportedly to contact the murder victim). The fact that reported instances of juror irresponsibility are rare (and even in Young another juror was sufficiently alarmed to approach the defence solicitor) indicates nearly all jurors approach their duties responsibly and seriously.
Verdicts where juries disagree with what they regard as unfair laws or oppressive prosecutions are frequently raised by jury critics. Indeed Lord Justice Auld was so incensed by such verdicts that he recommended they be outlawed (although he gave no clue how this might be achieved in practice). Examples include acquittals of anti-nuclear and environmental protestors, whistle-blowers such as Clive Ponting and multiple sclerosis sufferers in possession of cannabis. While ‘jury equity’ verdicts are uncommon, they perform an important democratic function in warning government of popular feeling on the issues in question.
The inarticulate jury
In the English system, the jury plays a passive role neither intervening nor asking questions. Allowing juries to raise queries at regular intervals would assist their fact-finding function and their understanding of the evidence. Promoting greater interaction between jurors and other trial participants would help counsel to know which evidence was not being understood and to improve their presentation accordingly.
There’s another sense in which jurors are inarticulate. English jurors are barred from disclosing reasons for their verdicts. Even before the Contempt of Court Act, the courts eschewed inquiry into jury deliberations. In R v Thompson  1 All ER 65 the Court of Appeal refused to intervene despite evidence that most jurors had favoured acquittal until the foreman produced a list of alleged previous convictions of the accused.
The prohibition encourages the Court of Appeal to indulge in speculative flights of fancy as to why juries might have reached their verdicts. During part of the 1990s, I chaired the campaign for the men wrongly convicted of the murder of Carl Bridgewater. The jury foreman at the men’s 1979 trial was Tim O’Malley. He became a committed campaign supporter after learning of extensive evidence supporting the men’s innocence which had been withheld from the jury. At the Bridgewater Four’s unsuccessful 1988 appeal, judges posited wild hypotheses as to which evidence had weighed most with the jury while Mr O’Malley was statutorily prevented from revealing what really happened. Some measure of protection for jury room discussions is essential but allowing juries to indicate which items of evidence they accepted or rejected in reaching their verdicts would aid the administration of justice.
The English jury system evolved in an accidental, haphazard way. This does not, of itself, provide justification for its abolition.
Calls for juries to be drawn from a body of trained volunteers would entail a return to the days when juries were predominantly middle-aged, middle-class, white and male.
Many arguments against the jury’s role resemble those formerly used by opponents of the universal franchise. After all, if ordinary citizens can’t be trusted to determine the facts in court, why should they be allowed to choose their legislators?