HOWZAT

Lord Justice Auld’s safeguard, that it could be for a judge to decide, did not help if neither the judge nor counsel knew from the start that there was a police officer on the jury.

The third case involved a Crown prosecutor on the jury. Lord Bingham questioned whether employed prosecutors should sit on juries at all. He said: “It must be doubted whether Lord Justice Auld or Parliament contemplated that employed Crown prosecutors would sit as jurors in prosecutions brought by their own authority.” He added that in his opinion, justice was not seen to be done if a person discharging the “very important neutral role of juror is a full-time, salaried employee of the prosecutor”.

So what is to be done? If Crown prosecutors should not sit, what about defence lawyers or other categories of juror? Lord Rodger of Earlsferry, who trenchantly dismissed all three appeals, accepted that there was risk but argued that it was manageable. The law, he said, was not naive; the assumption behind a panel of 12 jurors was that any bias would be neutralised. Just because there was a real possibility of a juror being biased did not mean a real possibility that the jury could not return an impartial verdict.

And why, he said, should police or CPS lawyers be singled out? What of a gay man trying a homophobic attack? The risk was no greater than that with other jurors, “be they clergymen, defence lawyers, butchers, estate agents, prostitutes, petty crooks or judges”, who were all sitting as private individuals and were told to try the case on the evidence before them.

Do these cases undermine the legislation aimed at widening the net for jury service? Another of the law lords, Baroness Hale of Richmond, was unequivocal that the answer was “no”. Because there are some cases where the “new” jurors could not serve did not mean that they should never do so, she said. It would be inconceivable for the Director of Public Prosecutions to sit on a case prosecuted by the Crown Prosecution Service and the same must apply to a CPS lawyer. But it may be different for other CPS employees — or cases brought by other prosecution authorities.

Officials are to draw up guidelines to tighten the safeguards in such cases and ensure that a judge decides if it is fair for a juror to sit. A Ministry of Justice spokeswoman said that the Government remained as “committed to the principle that as wide a range of the public as possible should be liable to jury service”.

If the clock is not to be turned back, then one answer is a closer scrutiny of jurors before a case starts. But if CPS prosecutors are in future barred from all CPS cases, that — as Lord Carswell said as he dismissed the appeals — would frustrate the will of Parliament, denying thousands of employees the right to sit on most trials and deny the abilities of CPS staff, like any other member of the public, to judge on the evidence before them.

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