Excessive strain falls on jury members

We must do more to help members of the public doing jury service, writes John Cooper.

“Do we have to decide on the evidence or can we convict upon gut instinct?” was one of the most revealing questions I ever had to deal with from the notebook of a jury in a criminal trial.

We know very little about what goes on behind the closed doors of a British jury room. The glimpses of its dynamics have been focused by the continuing drama of the Tony Martin trial, just completed in Norwich, in which his jury convicted him of the murder of a burglar who was trespassing in his home.

Those who regularly practise in courts that use juries to decide crucial issues of fact, often forget the immense pressure faced by 12 ordinary men and women thrown into the limelight.

It is not so much a proverbial 15 minutes of fame but an experience more akin to 15 minutes of dental surgery. Most of it involves probing, occasional shots of pain, and another person asking questions that you are not in a position to answer.

The early trials and tribulations of juries are immortalised on a plaque at the Old Bailey. The plaque honours 12 men who refused to be coerced by a judge into a guilty verdict.

But to some extent coer-cion is exactly what a jury endures during a trial. Coercion to find for the Crown, coercion to find for the defence, coercion not to be emotional, coercion to be sure, coercion to try again to be sure after at least two hours 10 minutes, coercion to reach a majority decision of at least 10 to two.

Jurors are even coerced not to talk about their experiences to anyone other than their jury members. And this is only when they are locked in “some private and convenient place” at court – usually a windowless room in the bowels of the court complex.

In exceptional cases, pressure can continue outside of the courtroom. Those who misguidedly approach jurors on behalf of defendants in an attempt to influence a verdict face a lengthy term of imprisonment themselves, and risk the costly abortion of a trial. They also place an intolerable burden on the intimidated jurors.

The level of care, protection and guidance given to jurors in trials is pitifully weak. Often they are lucky to be provided with lunch. Some courts play the jurors a video at the start of their jury service explaining how the court works and who those people are wearing 18th century costumes. But this can hardly be called interactive and that is the extent of a juror’s induction.

At some courts, jurors are allowed to wander around the common parts of the building, potentially mixing with witnesses, barristers and even the defendants whom they are trying.

We overestimate the ability of jurors – men and women with no previous exposure to the court system – to quickly immerse themselves in its procedures.

At an Essex Crown Court, I recall counting the jurors during the course of a retrial from the previous day. Upon reaching 13, I counted again. The prosecutor came to the same number, and the proceedings were drawn to an abrupt halt.

The thirteenth juror was from the previous day’s trial. They had come along to watch the new trial with the new jury. Needless to say, His Honour was not amused, especially when at the third attempt the trial was started and the key Crown witness failed to turn up for a third bite at the cherry and the case was thrown out.

There is a message behind such incidents. If we are going to be able to rely on juries continuing to deliver the goods, the public, who after all are the jurors, need to be made more aware as to exactly what their roles are. After all, how many juries are told by a judge of their innate right to find a defendant not guilty at any stage of the case, if they are of that unanimous view?

We need to help jurors to feel at home with the system. We either trust them or we don’t have them at all.

Right at the start of the trial, a jury should be told by the judge about all its powers and responsibilities. It should be guided how to take notes, evaluate evidence and how and when to put questions, especially during the course of a trial when questions can be dealt with by evidence. Too often juries ask questions during their deliberations when the trial is over and have to be told “there can be no more evidence”.

The jury system is the most important part of our trial procedure. It is the system that the public trusts, our peers judging us in a clear non-cynical way. It should be nurtured and allowed to flourish to its full potential.

John Cooper is a barrister at 3 Gray’s Inn Square