The jury’s out?

Scotland’s Court of Criminal Appeal has dismissed claims of an unfair trial in the Transco case. But the jury debate is set to continue. By Craig Connal QC

Juries are strange creatures. Sometimes they are lauded as critical bastions of justice, at other times they receive sentiments of quite the opposite variety. Their use, particularly in civil cases, has long been controversial. Only rarely have the courts engaged in open discussion on the issues that juries face, particularly in more complex matters – hence, the wider interest in recent pronouncements from the Scottish Court of Criminal Appeal in a case in which Transco was being prosecuted. The case arose out of a gas explosion in Larkhall, Lanarkshire, in which a house was demolished and a number of people died. Although the case is obviously a criminal one, parallels can be drawn – a prosecution under the Health and Safety at Work Act does have more similarities to a civil trial than much common law crime.

One of the principal issues, as Lord MacLean pointed out, was that there was “no empirical evidence” as to precisely what difficulties juries might have in complex cases. In the Transco case, the trial was estimated to take six months, potentially involve several thousand documents, several hundred witnesses and a range of time spanning 13 years.

In rejecting a “no fair trial” challenge under Article 6 of the European Convention on Human Rights, how did the court believe that the jury could cope? The view seemed to be that much of the burden of ensuring that they could cope would fall upon the trial judge. Not only would the judge’s directions to the jury be critical, but he might have to explain a number of issues at the outset of a trial to a much greater extent than usual. The court felt that an obligation to assist with clarity for jurors would persist throughout the trial. Apparently, the judge might be expected to intervene if, for instance, an expert witness was not making sufficient effort to give evidence in a clear and comprehensible way. The judge would seek a “more lucid presentation”. Quite an interesting challenge.

Current estimates of the volume of documents could be discounted, it was said, because all of them might not be used. In addition, modern scanning and presentation systems could be used to display those which were employed. Would the jury then be able to study them at length before formulating their answer? Recollections and clarity of recollection of evidence might be an issue given the length of trial. It was said that this could be coped with by using transcripts of evidence, or the possible use of instant display systems, such as Livenote. Undoubtedly, such systems could allow the checking of memory against records, although the sheer volume of material would be substantial.

Court practitioners might be particularly pleased (or surprised or horrified) to note that the court felt that much of the difficulty could be resolved by the advocacy skills of those appearing, who would inevitably make simple what was complex. This is another interesting challenge, even if it would always be in the best interests of the particular client to ensure every piece of evidence, even from the opposition, to be plain in the jury’s understanding. Would a straw poll of those conducting advocacy in the courts think the view expressed was realistic or unrealistic?

The particular issue before the court in Transco was obviously of great concern to the Scottish criminal system, given that there is currently no provision in that jurisdiction (the Lockerbie trial apart) for the hearing of serious criminal cases except before a jury. Nevertheless, it is plain from the views of the judges that they retain substantial confidence in the concept of lay justice, which juries represent. The court was even moved to point out: “Regrettably, from time to time, judges, as well as juries, may err in their understanding or application of the law, or in their assessment of evidence. In short, no tribunal composed of human beings can be regarded as infallible.”

In the legal profession, views will no doubt differ widely on the entire topic. As was said at the outset, juries can provoke strong emotions and many practitioners will have anecdotal accounts or philosophical approaches that point them in a particular direction. However, it would be interesting to know what the ‘man on the Clapham Omnibus’ would think of his ability to absorb and understand the issues in a case of that kind. What would the public’s level of confidence of delivering a fair result be? Would they believe matters could be resolved by the expedients suggested by the court?

As is so often the case, drivers for change might come less from the theoretical application of legal principles than from practical considerations. Lord Osborne, who delivered the leading judgment in the Transco case, while retaining his view that there was no “reasonable apprehension” that there would not be a fair trial, nevertheless suggested that the impact on the personal and business life of a juror asked to participate in a trial of that nature would be “a very severe burden”. In his view, consideration should be given to providing some alternative system – a judge sitting alone or some other tribunal not made up of members of the public – in appropriate cases.

Perhaps it might also be worthwhile taking this opportunity to review whether there is any real justification for retaining the residual use of juries in civil cases north and south of the border?

Craig Connal QC is head of commercial litigation at McGrigors