In defence of the jury
26 February 2013
8 March 2013
3 February 2004
29 April 2013
27 January 2004
20 February 2012
As the Vicky Pryce retrial gets under way, Gareth Weetman says that juries invariably reach sensible, logical verdicts in trials
“Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?”
The chances are that unless you’ve just returned from a skiing holiday very, very far away, such as on the ice caps of Mount Olympus (the one on Mars), you’ll be familiar with the storm that has been whipped up by the above question and nine others tendered by a jury in a high-profile case at Southwark Crown Court (on which case I’ll say no more, as the retrial is under way).
Since that was a case in which the nation’s media already had a fevered interest, it so happened that the questions were immediately subjected to the scornful analysis of thousands of armchair analysts and social media ‘experts’.
More typically it takes an especially striking incident for jury misconduct to reach the nation’s attention. Who could forget the example of the jury that took to consulting a ouija board in order to seek out testimony from the deceased? Or the juror who asked for the precise date and time of the defendant’s birth so that he could generate the accused’s star chart? What of the juror who was alleged to have been wearing earphones under her hijab? Or the jury panel that withdrew to a public house at lunchtime to celebrate the 21st birthday party of one of their number, returning to court in a state of ‘advanced refreshment’? Or the juror sending a note to the prosecution barrister enquiring, “what’s a lady need to do to get your attention?” (alas, this has never happened to me). Most unfortunate, perhaps, was the juror who, only partway through a trial at Luton Crown Court, turned to the defendant in the dock and shouted “Why don’t you plead guilty? You are f****** guilty!”.
All such examples provide exhibits A through to G for the anti-jury lobby, and that’s even before they look overseas for further evidence of jury misbehaviour. US trials have yielded other examples, such as the juror who blogged mid-trial to complain that his valuable time was being taken up dealing with ‘riff-raff’. In Australia one jury panel sought out the defence advocate after the trial to console him with the news that their guilty verdict had been based on material about his client that they’d found on the internet. Another caused a fraud trial to be abandoned when it emerged that their apparently diligent noting of the evidence had, in fact, been them completing sudoku puzzles.
Emboldened by such examples, some ask whether our historic faith in the jury system is still soundly placed. In recent days commentators such as Joshua Rozenberg and Simon Jenkins have questioned whether this is the beginning of the end for the jury system as it currently is, the latter describing it as a “crashing waste of time” for those involved (speaking from his own experience).
Before we rush to convict the jury system as being unfit for purpose, it’s important to consider that such events, albeit entertaining in the retelling, are incredibly rare. I’ve observed hundreds of juries over 14 years at the bar and by far the most typical jury panel is one that is patently applying itself diligently to the case and approaching its role with an obvious attitude of responsibility and common sense.
We should be cautious before judging a jury by its questions alone. The induction DVD shown to all jurors tells them that they can ask questions if they wish, and they typically do - increasingly they hand questions forward while the evidence is still being given. It’s true that not every question reads as if Paxman has crafted it, but they generally indicate a juror who is thinking carefully about the issues and wants to get to the truth of the case. For my own part, whether prosecuting or defending, I’d far rather that jurors felt able to ask questions, whether they might be perceived as daft or not, since the alternative of sitting in ignorance has obvious dangers. Just because a jury panel produces a question that seems to be asking for the obvious to be restated doesn’t automatically mean that they’re all incompetent. One can envisage a scenario whereby 10 or 11 members of a panel ask an obvious question merely to put to rest a groundless point that has been raised by one of their number.
There are those who would advocate for an introduction of a literacy test, a basic level of qualification or even professional jurors to our courtrooms. This is to assume that the making of a good juror is intelligence alone. This doesn’t necessarily follow. The rationale of troubling 12 people to put their lives on hold, rather than just three, or five, is that it provides a far better chance of creating a panel that constitutes a genuine cross-section of the local populace. Who is to say that the person with no qualifications, who struggles with spelling, is any worse than a distinguished academic at judging whether a witness is honest and reliable? If we introduce tests or criteria as provisos to jury empanelment, then we risk diluting the fundamental principle that a defendant can expect their fate to be determined by a truly random selection of their peers.
A striking fact about this debate over the last week is that every practising advocate to express a view publicly about the jury system has been strongly in favour of it. These are the people who work alongside juries on a daily basis and the fruit of whose endeavours will ultimately rest in jurors’ hands. It might be thought that, were there a deeper-seated problem with a perceived incapacity of jurors, these advocates would be the first to speak out. Barristers are, after all, not known for being hesitant in speaking their minds, particularly where there is an institutional unfairness that needs to be addressed.
The enduring faith that the bar has in juries, from either end of counsel’s row, is powerful evidence that on a daily basis, in courts up and down the country, juries are demonstrating an ability to work together to reach sensible, logical verdicts in trials. Long may this continue.
Gareth Weetman is a crime and personal injury barrister at 7 Bedford Row. He tweets as @barrister7.