The jury: We never know why its members come up with their verdicts
Sacred Cows

Trial by Jury

I should have known that expressing the slightest doubt about trial by jury would lead to public opprobrium

Joshua Rozenberg

This article is taken from the October issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.

It’s not unknown for juries to send notes to the judge after they have been sent out to consider their verdicts. Sometimes they want advice on a point of law. Occasionally, they want to check a piece of evidence. In 2013, a jury at Southwark Crown Court asked a more basic question: “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?”

“No”, said Mr Justice Sweeney.

Can we speculate, the jury then asked, about what was in the defendant’s mind? “The answer to that is an equally firm no,” the judge replied.

How about a couple’s wedding vows? Would those justify a wife obeying her husband’s orders? That was not an argument the defendant raised, Sweeney patiently explained. “Does the defendant have an obligation to present a defence?” Again, no.

If you remember any of this, it’s because the defendant was Vicky Pryce, ex-wife of the former LibDem energy secretary Chris Huhne. Unsurprisingly, that jury failed to agree. A second jury convicted Pryce of perverting the course of justice by telling the police that she, rather than Huhne, was the driver of a vehicle caught speeding. He admitted a similar charge and both served prison sentences.

I was so alarmed by the jury’s questions — there were ten in all, including “what is reasonable doubt?” — that I wrote a column for the Guardian suggesting it might be “time to consider whether we are right to entrust the most serious criminal cases to the hands of unqualified lay people”.

I qualified this outrageous suggestion by saying, “It would be wrong to change our legal system just because one London jury appeared to be utterly at sea.” But I should have known that expressing the slightest doubt about trial by jury would lead to public opprobrium — though fortunately not, in my case, imprisonment.

Lord Devlin saw perverse acqittals as a strength of the system but admitted that jurors can identify too closely with the accused

In that sense, juries are sacred cows: people will not hear a word said against them. Because the version of Magna Carta that remains in force says “No freeman . . . shall be imprisoned . . . but by lawful judgment of his peers” — or perhaps because Tony Hancock famously asked his fellow jurors, “Did she die in vain?” — some people imagine that trial by jury in its present form goes back to 1215. Far from it. In the Hamlyn lectures he gave in 1956, Sir Patrick (later Lord) Devlin explained how the jury changed its character over the centuries from a body of witnesses to a panel of adjudicators. “It was not until the sixteenth century,” he said, “that the jury had to be considered as a body of reasonable men exercising a rational function.”

When Devlin was speaking, most jurors were male property-owners under 60. Those called to serve could be removed by peremptory challenge but their verdicts — usually delivered after no more than five hours’ deliberation — had to be unanimous.

Juries used to decide civil claims too, though these had “diminished enormously” over the first half of the twentieth century.

There was still a right to jury trial in defamation cases; but that was abolished, without any public concern, at the start of 2014.

The main problem with juries is that they do not give reasons. That tends not to worry us when they find defendants guilty: we simply report the prosecution case as true. For all we know, the jury may have convicted the defendant because they were sorry for the supposed victim and thought that somebody should carry the can.

Wrongful acquittals are even more of a problem. We can’t imply that the defendant is guilty without the risk of a libel action. Devlin saw perverse acquittals as one of the strengths of the system — but he admitted that jurors sometimes identified too closely with the defendant. “It may be,” he said, “that the jury system means that some good and necessary laws are only weakly enforced.”

The middle of a crisis is the worst time to introduce radical reforms

When I interviewed Lord Devlin to mark his eightieth birthday in 1985, we discussed the case of Clive Ponting, a civil servant who had been recently acquitted of charges under the Official Secrets Act — even though there was no doubt that Ponting, who died this summer, had leaked secret documents about the sinking of the Argentine cruiser General Belgrano during the Falklands war. Devlin told me a jury had a right to be perverse in the exercise of what he called its legal and constitutional spirit. “If it’s asked to enforce law which it really feels is against its conscience, it says no, and it acquits. And that’s to my mind our proudest constitutional achievement.”

It’s Devlin’s characterisation of juries as a protection against tyranny that has made us so uncritical. That’s so even when reforms are proposed by radical lawyers such as Geoffrey Robertson QC — who thinks that defendants facing jury trial should be able to choose, as an alternative, a judge’s fully reasoned decision — and the late Sir Louis Blom-Cooper QC, whose last book was called Unreasoned Verdict.

We are particularly suspicious of suggestions that defendants charged with middle-ranking offences — ones that can be tried either by magistrates or in the Crown Court — should lose their entitlement to jury trial, at least while the backlog is so bad that defendants in custody may be held for up to eight months and those on bail may not be tried before 2022. The lord chief justice, Lord Burnett of Maldon, and the lord chancellor, Robert Buckland, were both shouted down during the summer for suggesting that jury trial could be replaced by a judge sitting with two lay magistrates.

I have argued against these supposedly temporary changes — but not because I regard the jury system as a fragile plant that will die if we examine its roots. These are simply bad ideas: defendants would come under pressure to waive their rights, and lay magistrates would not be able to spare the time. The middle of a crisis is the worst time to introduce radical reforms.

Scotland, by contrast, is making no change to its unique juries — 15 members, simple majorities, not proven verdicts. But the Scots are coping with the need for social distancing by making imaginative practical adjustments. Instead of sitting in cramped courtrooms, jurors will work from spacious Odeon multiplexes in the suburbs of Edinburgh and Glasgow with secure video links to traditional courtrooms. Digital projectors will beam remote hearings onto the big screen.

Maybe that’s what Devlin had in mind when he described trial by jury as a beacon — the lamp that shows that freedom lives.

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