Jurors wept when shown the photograph of the emaciated body of a
seven-year-old girl, taken after her death. Khyra Ishaq, of Birmingham, died
of an infection after being deprived of food as part of a “punishment
regime”. The jury was discharged due to illness and “personal reasons” and a
retrial is planned. Another jury wept this month at the end of the trial of
the men convicted of murdering the two French students, Laurent Bonomo and
Gabriel Serez, as they listened to the tributes paid by the bereaved parents
to their sons. Jurors in the trial of Baby Peter heard days of harrowing
details of the little boy’s injuries and death. These jurors will carry
those memories for ever.
Jury service is carried out by an average of 390,000 British citizens a year.
It is an important civic duty; but it is not an easy task, involving hours
of waiting to be called; starting to hear a trial, only for it to be
aborted; or hours of legal argument. It can also involve the most gruesome
of crimes, or highly technical and complex evidence. The responsibility is
huge: jurors must be sure “beyond reasonable doubt” that the defendant
committed the crime, knowing that a loss of liberty may result. So it is no
surprise that they may be traumatised. Worse, if they experience distress or
doubts, they cannot talk about it — because they are prohibited in law.
So, is the jury system working? Or are we expecting too much? Little is known
about what goes on in the jury room because of restrictions against
disclosure under the Contempt of Court Act 1981.
Psychologists at the University of Leicester recently conducted research into
how stressful people found the experience. Dr Noelle Robertson, Professor
Emeritus Graham Davies and a graduate student, Alice Nettleingham, found
that some jurors will be traumatised — and not just by the evidence. Dr
Robertson says: “It confirms that jury service can be a source of stress,
which for some can be overwhelming.” Jurors have no preparation other than a
film outlining their duties; they may be exposed to the distress of
witnesses or required to handle repellent exhibits and examine graphic and
shocking photographs. But the deliberations can be equally stressful. “They
have to discuss evidence and may be under pressure to change their views,”
she says. “People perceive that they have been bullied or hectored, or may
be unhappy with the decision.”
Yet if they talk about their experiences, they run the risk of being charged
with contempt of court. Jurors, the study concludes, need more support in
preparation, directions for making their decisions and debriefing in
traumatic cases. In one recent case involving the trial of a paedophile
ring, the judge prevented the public and the media from witnessing some of
the material. “The jurors were uniquely exposed,” says Dr Robertson.
These days almost everyone, barring convicted criminals, has to serve if
called. In 2004 ministers brought in changes to stop what was seen as the
middle-class opt-out. Two thirds of those summoned got out of it. Others,
such as lawyers, police officers and doctors, were exempt. But the change
brought criticisms, in that police officers, lawyers and judges must serve.
One judge told The Times: “It really is absurd. We are advised to
dissemble in some way if asked about our jobs, so as not to influence other
jurors. Because, for instance, we know that when certain things are not
said, it is because the defendant has previous convictions. It skews the
whole system.”
Nonetheless, judges cannot evade jury service; and if they try, few adopt the
tactics of Erik Slye from Montana, who wrote to court officers: “Jury
service is a complete waste of time. I would rather count the wrinkles on my
dog’s balls.”
Some say that the move to make juries more representative counters arguments
that they cannot be expected to weigh complex evidence that draws on
scientific and medical technique or research. Scientific evidence is
commonplace since the advent of DNA technology in the 1980s. Tests on
saliva, skin, blood, hair or semen are now regularly used to secure
convictions or to rule out suspects. But with the tests come defence
challenges — whether evidence could have been contaminated in the
laboratory, for instance. Juries are left to sort out statistics on the
probability that the evidence is reliable.
So how, critics ask, can ordinary people weigh experts’ conflicting arguments?
The debate has gained momentum in recent years after three attempts by the
Government to remove juries for big fraud trials. Judges and lawyers
generally argue that jurors are up to the task; it is for judges, lawyers
and experts to simplify things. At the end of the day, they say, it comes
down to honesty.
Ronald Thwaites, QC, an experienced barrister, says that juries include people
who understand what is going on. “It is the duty of lawyers and experts to
speak plain English so that the jury is not bamboozled — and the duty of the
judge to ensure they are not.” Anything, he argues, can be reduced to a few
simple propositions. “I believe it is the fault of the experts if they can’t
explain.”
Then there’s the argument that jurors will be taxed by a long trial. John
Bromley-Davenport, QC, worked on the Morecambe Bay cockle-pickersw trial,
over the deaths of 23 illegal Chinese workers, which lasted seven months. “I
am a huge fan of the jury system, as are the vast majority of those who
practise in the criminal courts,” he says. “I have yet to be in a case in
which I had less than complete confidence that the jury grasped and fully
understood the difficulties put before them.”
Problems did arise; but usually from failings in policing, the prosecution
process, presentation of cases or where judges failed to control
proceedings. In the cockle-pickers trial, the jurors were astute and praised
by the judge. Bromley-Davenport adds: “Jurors are extremely conscientious;
follow the evidence with great care; pick up the threads of difficult,
complicated and unfamiliar evidence remarkably quickly and familiarise
themselves with the paperwork or computer-generated evidence with great
facility.” On occasion they might not be right but that is their
prerogative, he says. “That is the means by which a jury can achieve a just
result by using their collective instinct and commonsense and applying it to
the evidence.”
Mark Solon, of Bond Solon, the expert witnesses training company, agrees. “I
think the job of jurors has become more difficult.” There is a risk, he
says, that the evidence is so complex that jurors just give the defendant
the benefit of the doubt, “so the guilty could be going free”. But he agrees
that lawyers have a role in ensuring that experts make themselves clear.
“There is a danger that counsel will try to sow doubts in the minds of
jurors. But the judge needs to give clear directions.”
So what do judges think? His Honour Gerald Butler,who has sat on countless
trials, is in no doubt. “The jury system is not perfect. But generally it
works extremely well.” Juries, he says, should be allowed to make a decision
about whether expert evidence is accurate, provided they get proper
directions from the judge. On rare occasions he has disagreed with a jury
acquittal: “But I have seen why they reached the verdict they did.”
And what would be the alternative? Judges sitting alone or with a panel of
experts? “With judges,” argues Bromley-Davenport, “there is a risk of more
miscarriages of justice.” He cites the case of a young man charged with
serious sexual offences against two boys. As the trial progressed it became
apparent that he was innocent — a view shared by everyone except the judge,
who summed up strongly for a conviction. But the jury retired for less than
an hour and acquitted on all 23 counts.
More important, it is doubtful that the public would have the same confidence
as it would with a jury. It is essential to have the continuing
participation of the jury, says Bromley-Davenport, as independent
representatives of the community who observe the legal system at work; apply
the ethical standards of ordinary people and deliver what they perceive to
be justice. Butler agrees: “If you have a ‘not guilty’ verdict even when the
evidence seems strong, you have controversy. Nevertheless, by and large,
people will say, ‘that’s what the jury decided — so be it’.”
Should a jury be left to do its work in secret? One juror and The Times
were recently found guilty of contempt of court after the juror expressed
concerns about a case in which a childminder was convicted of killing a
child in her care. The case has re-opened debate on whether it is time to
revisit the Contempt of Court Act 1981 to relax the prohibitions against
jurors speaking out. Some argue for preserving the sanctity of the jury
room. Thwaites, for instance, says nothing would be achieved. “So if one
person dominates discussion or is more in control than others, does that
matter? That’s life. It would be a terrible waste of public money. And
undermine public confidence in the jury system.”
The sanctity of the jury room, before the verdict, is essential, argues John
Cooper, a criminal barrister. “The process may not be complete,” he says, “
appeals by either side may be a prospect, and the breaking of that sanctity
may prejudice an appeal. If a retrial is ordered, a future jury could be
prejudiced by what a past jury said.” But he argues that there may be a case
for saying that a juror, concerned about a verdict or the process, should be
able to communicate matters which could have relevance as to whether the
trial was fair.
Gary Slapper, the Professor of Law at the Open University, says that the ban
on jury research is “bizarre and unsustainable in the age of openness”.
Taxpayers, he says, fund more than 800,000 juror-sitting days a year. “Why
should we not be allowed to discover how juries operate?”
There is now, he says, a compelling argument to change what is an
anachronistic law in need of urgent reform.
There is overwhelming faith in the jury as a system that works well.
ButProfessor Slapper asks, can we be sure “beyond reasonable doubt?” He
says: “The answer is one worthy of Alice in Wonderland: we do
not know and it is illegal to find out. The jury is a linchpin of our
democracy. With anything that important, we need to know how it works.”
A tale of two jurors
The system is frustrating bit still excellent
The defendant was charged with causing actual bodily harm. We were presented
with video evidence, plus testimony from the complainant, defendant, British
Transport police and three experts. The jury had difficulty with the video
evidence as it was CCTV footage and the stop-motion nature of the pictures
left much room for interpretation. The expert evidence was fine. When
photographic evidence was presented, alongside a statement from an expert
witness who was not present, it was ambiguous at best and confusing at
worst. The evidence given by the British Transport police was particularly
weak. The investigating officer frequently used jargon and the judge was
forced to intervene frequently to clarify points.
Overall, the participants — with the exception of the judge, who was
professional, patient and precise — failed to live up to my expectations.
The lawyers went through the motions with an air of resignation. The
clerical staff were unhelpful and disorganised, and the courthouse was
dilapidated. The jury went about its discussions in a relatively structured
way. The pecking order was predictable — a PR director ended up being the
spokesperson and ran the sessions as one might run a corporate workshop. On
the whole this was effective and worked well.
The mix of individuals was spot-on and resulted in a vibrant discussion that
explored the issues thoroughly. The only obstacle was the unhelpful
influence of dramas about the legal system. Jurors tended to refer to
cinematic clichés as points of reference. A significant issue arose around
the concept of reasonable doubt which on several occasions led to inertia.
The jurors were paralysed by a fear of making a wrong call. However, the
group dynamic helped to overcome this and it did force the snap
decision-makers to reconsider. In the end, the jury found the defendant
guilty.
The jury system, although at times frustrating, is excellent. It was a
privilege to participate and I feel lucky to live in a country that places
trial by jury at the centre of the legal process. Tragically, the legal
apparatus that supports it seems to be creaking under the weight of cases
brought by people who abuse it to settle scores.
Hector Arthur
I was so relieved when it was over
My jury had to consider the case of two men accused of murdering a man after
an argument on the top deck of a night bus. We were of mixed ages and ethnic
backgrounds. I was one of two white middle-aged males. The evidence was easy
to understand; a man had been killed by stab wounds to the chest and back.
The difficulty was in establishing which of the accused had wielded the
knife. Eye witness accounts differed. We heard evidence for five weeks and
it took one afternoon and the following morning to reach our verdict, which
was that both of the accused were guilty by virtue of joint enterprise.
The judge stopped short of directing us to this , but he did make it clear
that we could return guilty verdicts on both. Some members felt reluctant to
pass a murder sentence on a man who hadn’t actually done the killing.
Our deliberations were extraordinarily tense. We were down to ten members,
having lost two for technical reasons, and we were told that our verdict had
to be unanimous. There were dreadful moments when it looked as though the
differences between us, instead of being overcome for the sake of completing
our task, were going to harden into into an impasse.
I think we all dreaded a real stalemate. There were also times when the
argument went with force of personality. Having said that, it never got
personal. Heated, yes; hateful never, not even when we all had to traipse
out of the building together for the sake of two smokers. I think we did
well. I think we knew we had to. I have never been as relieved as when it
was over, not even after the end of the worst exams.
Alan Franks
Juries: the facts
Almost 500,000 people are summoned to do jury service each year.
Of those, more than 107,000 are excused or deferred because they had served
within the past two years; had childcare or work commitments; language
difficulties; were students; had travel problems or were in financial
hardship.
Jurors must be registered electors aged 18 to 70, resident in the UK for five
years since the age of 13, not be “mentally disordered” or disqualified (a
criminal record may disqualify for ten years or life, depending on the
sentence).
Before the Juries Act 1974, jurors were mostly men and middle or upper class
as they had to own a property of a certain size or hold a long lease.
Jury in its present form dates from 13th century when the Roman Catholic
church withdrew support for “trial by ordeal”.
Juries heard civil and criminal cases until 1846 — this has now been abolished
for most civil actions except defamation or actions against the police.
Verdicts had to be unanimous until 1967 when the possibility of majority
verdicts were brought in.
