Judge and jury
23 August 2004
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4 December 2013
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19 August 2014
Just about anybody can now be called for jury service – even lawyers. Jon Robins reports on why some are trying to avoid doing their time
A couple of months ago, Andrew Prynne QC turned up for jury service at the Old Bailey. In doing so, he made a little bit of legal history. No one relishes receiving a jury summons, and now that ministers have closed up the loopholes allowing professionals to dodge performing their civic duty, only two classes of people are exempt from service – lunatics and criminals.
Prynne, a personal injury specialist from Henderson Chambers, had no choice. “I have to say, I felt somewhat unlucky given that the law had changed on 5 April and the letter arrived on the 6th,” he recalls. “I think that I was the first barrister ever to sit as a juror.”
And it was not a particularly auspicious start. On the first day that Prynne began jury service he was sworn in for a murder trial.
However, the lawyer, who had practised criminal law earlier in his career, recognised the leading prosecuting counsel. “I don’t know how this legislation is going to work intelligently,” said presiding judge, Judge Bathurst-Norman, as he bade farewell to the silk. “It deeply troubles me. It is not for me to undermine the will of Parliament, but, at the same time, I have to ensure a fair trial.” Prynne was sent back upstairs to wait in the assembly room.
On the second day, the barrister was back at the Old Bailey, only to be told that he wasn’t needed until the end of the week. In fact, it was not until the following Monday that the QC was next called to another jury panel but, glancing at the cause list, he noted that the presiding judge was another acquaintance from his days practising in Kent. This time his name was not called. Sensing the potential futility of the exercise, the barrister applied to be excused further jury service – without success.
Back the following day, Prynne was called to another jury panel whereupon he found that he once again knew the judge. Having now been discharged three times in seven days, Prynne applied to the Bailey’s most senior judge, the Recorder of London, to be dismissed on the grounds that everyone’s time might be better spent if he was not there. But, no, the barrister was informed that he was needed and merely knowing lawyers in a professional capacity was no bar to service.
With that cleared up, Prynne returned to his civic duty and was again selected for another jury. Alas, one of the judges he had come up before the previous week was presiding. “It was pure Kafka,” recalls Prynne. “By this time, my predicament was well known among my fellow jurors who thought that the whole thing was hilarious and nonsensical.” On Prynne’s tenth day of jury service, he was told that he was again needed. This time he was successful and ended up sitting as juror on a half-day grievous bodily harm trial on the Monday. It was a fortnight after his service started.
New laws for a new jury
Earlier in the year, the Government changed the law in an attempt to clampdown on the so-called “middle class opt-out” from jury service. Not only do a number of professionals previously excluded – such as judges, lawyers, the police and others connected with the justice system – have to serve, but it is much harder to avoid duty by claiming professional commitments. According to Home Office research published in 1999, two thirds of those summoned for jury service managed to give it the slip.
The most adept at jury dodging are, apparently, the middle-classes. “I’m not quite sure what they mean by ‘middle class opt-out’,” muses one eminent barrister. “Certainly, when my wife was called for jury service but didn’t want to do it, she seemed to have no difficulties in persuading the authorities just over the telephone that she had a bad back and couldn’t possibly sit all day in the jury box.”
The absence of professionals from the bench has fuelled an unfair caricature of juries as “over-peopled with the feckless, the grudge-bearing and the unemployed”, as one anti-jury commentator put it.
Most lawyers welcome the Government’s efforts to bolster juries with a wider cross-section of society, especially as not too long ago it appeared to be doing everything within its powers to undermine them. So what does Prynne make of scrapping the prohibition on lawyers? “I’m a great believer in the jury system and one of the reasons why people have had such confidence in it in the past is because lawyers weren’t allowed,” he says. “The system worked on the basis that the lawyers ran the trial and a judge presided over it, but the ultimate decision-making was left to the layman. That’s a very important feature that has been completely overlooked.”
“The whole point of having a jury system is that it is comprised of non-lawyers,” agrees John McDonnell QC, who left 9 Stone Buildings in June to set up 13 Old Square and specialises in Chancery litigation. Surely insisting that everyone must serve on juries is the best way of underlying their democratic credentials? “If you argue that it’s fundamentally wrong in principle for lawyers not to be exposed to jury service, well, that might be true,” he says. “But if doing so is going to detract from the virtues of the jury system itself then there is an overriding interest in keeping it undemocratic in that sense.”
It is an issue of principle that most lawyers subscribe to. Criminal defence practitioners also point out that there are other compelling reasons for maintaining the exemption. Jeremy Dein QC, a member of the Criminal Bar Association’s education sub-committee and a member of 25 Bedford Row, says: “I can foresee real difficulties, in that lawyers who sit on juries may not necessarily agree with legal directions and decisions that the judge is making and, as a consequence, they’re put into a compromising position. It seems to me, and many of us, that this is a difference that makes the idea, when put into practice, a hard one to agree with.”
McDonnell sits as a Deputy High Court Judge and his own experience on the bench has made him “a convinced supporter and admirer” of the jury system. “I’ve never experienced a jury I felt had reached a wrong verdict and I’ve never seen any sign of off-handedness or inattention,” he says. “In fact, I was always amazed at how attentive they were. I hate these proposals because they seem to spoil that.”
The legal argument
Of course, there is an irony in that lawyers, who recently argued so vehemently in defence of juries as the Government tried to get its deeply loathed Mode of Trial Bill through Parliament, now appear to be doing everything within their powers to get out of serving on juries.
Certainly, that is how Trevor Grove, former editor of The Sunday Telegraph and author of The Juryman’s Tale, sees it. “There is a real fear of sitting down with the hoi polloi and, of course, lawyers know how jolly boring it would be,” says Grove, who has sat as a juror four times. “Lawyers tend to look upon the law as a sort of game in a courtroom where a set of rules is exploited by one side or another to get the verdict that they are professionally bound to seek, but once those lawyers are in the jury room, they’ll realise it isn’t such a game and the rules don’t matter that much,” says Grove.
Lawyers argue that their very presence might distort the workings of the jury, as fellow jurors defer to the experience of their lawyer colleagues. Payne Hicks Beach dispute resolution head Richard Butcher says that there is a danger of the defendant not receiving a fair trial in that other members of the jury may be inclined to think that a practising lawyer is more likely to understand the process and be able to form a better view as to the credibility of the witnesses.
“As a consequence, the lawyer may have a greater bearing on the outcome than ought fairly to be the case,” he argues. “Given that jury deliberations in this country are, rightly in my view, to remain confidential, it will not be possible for a defence team to establish if that has been so.”
Last month, a certain John Dyson was appointed foreman of a jury at London Crown Court – he is probably better known as Lord Justice Dyson. How would the appearance of such a legal luminary affect the smooth running of a trial? “I’d have confidence that he would behave appropriately as a juror,” says Rodney Warren, chairman of the Criminal Law Solicitors Association. “What else can you say? He’s a Lord Justice of Appeal. If he can’t be trusted to sit as a member of a jury it would be a pretty sorry state.” More generally, Warren remains unconvinced that fellow jurors would be swayed by the presence of his fellow professionals. However, he points out that a lawyer who is familiar with the criminal law process may be able to second-guess legal arguments or ascertain whether, for example, a defendant has previous convictions. “But I really think that is going to happen very rarely,” he adds.
“One shouldn’t forget that a lawyer is likely to be one of 12,” says Grove. “If the lawyer in question tried to browbeat the rest of the jury into following their wise opinion, they would be pretty quickly riled and annoyed by this posh know-all. Jurors can be very stubborn and wouldn’t take kindly to being bossed about.”
As for whether lawyer-jurors will cotton on to whether a defendant has previous convictions, Grove points out that jurors are not fools and quickly work this out for themselves. “For example, if they see a lot of security men in the dock,” he says.
The American way
On the other side of the Atlantic, where juries are revered, UK lawyers’ squeamishness about serving is given short shrift, as everyone over there is expected to do their bit. “Juries are one of the hallmarks of a well-functioning democracy,” says Covington & Burling white collar crime partner Lanny Breuer, who is the lawyer who represented Bill Clinton in his impeachment proceedings. “A citizen can’t be imprisoned or have his or her liberty taken away simply by the act of an official such as a judge, and that’s why we put juries on such a pedestal.”
In reality, most Americans go to jury service with exactly the same sense of dread as they do in the UK and, as Breuer points out, “busy professionals are always looking for excuses to get out of it”. But do they manage it? “No,” he replies. In fact, this month the lawyer himself reported for jury duty in Washington, despite the fact that he is currently representing Sandy Berger, the senior adviser to John Kerry accused of removing classified documents from the US National Archives – the biggest case in the US at the moment. What tends to happen in the US is that legal teams can kick off jurors they do not want on their trials through the pre-emptory challenge system at jury-selection stage. This can be for whatever reason they want (provided it is nothing to do with race or religion). Consequently Breuer, who happened to know the judge, was dismissed. “If you didn’t have lawyers on juries then you wouldn’t have juries that reflect the communities,” he says. “So much of our professional class is comprised of lawyers.”
So, where does Breuer stand on lawyers serving as a matter of principle? “I genuinely believe lawyers ought to be on juries,” he says.
“In fact, I think it’s a little egotistical and self-important for lawyers to think that they’re too educated, skilled, or just too expert, to serve.” He also believes that lawyer-jurors do not generally exert undue influence on their colleagues. “In good conscience, I can’t save my British friends from serving on juries with lawyers,” he says.
“They are going to have to find another excuse to avoid the company of lawyers.”
Around 480,000 people are summoned for jury service annually. Previously, less than half – around 200,000 – were eligible.
Compelling reasons why eligible people could defer include: death or illness of a close relative, health reasons, pre-booked holiday, those who are full-time serving members of the armed forces where the commanding officer certifies that the person’s absence would be detrimental, and religious festivals.