WHAT next for Britain’s juries? The Lord Chancellor, Lord Falconer of Thoroton, last week announced a research project into their future. Something is clearly worrying him. In a BBC interview at the weekend he implied that he had never seen the inside of a jury room. Yet he declared it to be “at the core of British justice and democracy”. Jury service, he said, was a citizen’s duty. “We’ve all got to give a little time to it.”
Did he say we? I am sure his lordship has no intention of wasting his own time on such footling business, nor do most middle-class Britons. If he or they did, the system would have vanished long ago. But if he wants to know the secrets of the jury room, why not ask the jurors. I have done jury service three times. Each occasion was time-wasting, inefficient and expensive, both to the state and to jurors. There were moments when I thought the whole business was an amateur medieval mystery play staged by lawyers, largely at the expense of the working class.
Consider my most recent case. A man sits drinking in an East End pub. It is long past closing time and he is drunk. The door crashes open and another man rushes in with a knife and tries to cut his throat. He shouts that his victim has “f***** up my life” and he means to kill him. The victim defends himself against the knife and they fall to the floor fighting. The bar girl presses the alarm. A second man rushes in, drags the assailant away and they run off.
When the police arrive, the bloodstained victim offers up the name of a man he claims attacked him and whom he knows well. The police arrest the man. He denies any knowledge of the affair and asserts he was at a party at his girlfriend’s at the time. The girlfriend corroborates this alibi. Nobody in the pub, not even the victim’s wife, will identify the attacker on the grounds that he was partly hooded. So it is one man’s word against another in a typical East End feud.
The named man is next remanded in custody by the magistrates and spends five months in jail before coming before the crown court. The case takes a couple of days. It is clear early on that the jury is not going to be trusted with evidence that might help it reach a thorough or reasonable verdict. There is to be no mention of any vendetta between the two men and therefore no cross-examination of the meaning of the threat. This is despite one of the charges being “threat to kill”. All question of motive is apparently “prejudicial”.
There is no analysis of why so few of those present on the night in question would give evidence in court. The girlfriend’s alibi is not properly cross-examined by the Crown counsel. The brother of the accused, allegedly with him throughout the evening, is not subpeonaed. There is no forensic evidence, let alone the knife. Nor is any mention made of the context of the affray or a possible alternative assailant.
The prosecution was a disgrace, appearing to have been cobbled together the night before. A bewigged barrister did little more than tell the accused and his girlfriend, over and again, “You are lying, aren’t you?” It was an unproductive line of questioning. The court was then cleared when a policeman explained the lack of an identity parade on the grounds that everyone in the case knew everyone else. We were supposed not to hear this and had to go and wash out our ears. The witnesses should be treated as recently arrived from Mars — and learned counsel from Gilbert and Sullivan. Most opponents of the jury system claim that jurors are too ignorant, too intimidated or too biased to spot villains. In my experience the first two claims are rarely true, though the police reckon that more than a 100 juries a year are systematically “nobbled”. The last claim has some validity. But when rules of evidence are so daft and so much jury work is left to hunch and supposition, personal bias is bound to be a factor. If juries are kept in the dark about the witnesses appearing before them, small wonder they rely on race, accent or gesture. If they are supposed to bring their subjective judgment to the evidence, why not to all the evidence, not just the bits the judge decides to toss them?
As regards our jury, we guessed pretty well what had happened in the bar that night. We discussed the glimpses, slips and hints of what we saw in court. We became obsessed with what we were not told, indeed according it greater significance thereby than what we were told. I cannot report our guesses, only our verdict. The identity of the accused as the attacker was not proved “beyond reasonable doubt”. The only certainty, we agreed among ourselves, was the shambles of the trial and the incompetence of the prosecution. It took us just 20 minutes to throw the case out. The defendant looked duly delighted.
Juries should go the way of trial by ordeal, ducking stools and public hangings. In 2001 the Government tried to limit jury trials after the sensible Auld report into criminal trials. The Bar Council and other legal lobbyists instantly proclaimed them a “fundamental protection of individual liberty”. Yet no other country in Europe feels any need of them. I am not aware that these countries are less free. They have lower crime rates and far fewer citizens in prison. The only countries using jury trials acquired them as British colonies, North America and Australasia. America has a higher crime rate and even more people in prison. The only relationship I can detect between jury trial and personal liberty is an inverse one.
Juries date from a time when the King’s Justice required the backing of local consent. They were a bulwark against mob rule, and assisted judges, sheriffs and justices in keeping the general peace. They ran alongside other forms of public duty, such as service as special constables, bailiffs and highway maintainers. Today they are the sole survivor of compulsory public service. That a service as technical as administering justice should be compulsory when, for instance, local government is voluntary is bizarre.
Jury service is undeniably stimulating and many jurors like it. It brings them into contact with others from different walks of life in a common endeavour. It is National Service for grown-ups. A real-life whodunnit is staged each day, usually more dramatic than on any West End stage. Yet most jurors to whom I have talked are infuriated by the time-wasting and flummery, the substance concealed by theatrical performance. Jurors are treated as dumb individuals. Everything from the bossiness of the staff to the forms and regulations, the food and drink, the delays more tedious than in an casualty department, all put jurors well below the salt.
The Lord Chancellor said on Saturday that he wanted to fine employers who failed to give their staff time off for juries. I do not see why employers should subsidise his own inefficiency. Many cannot afford to lose staff to sit in waiting rooms for days on end. My own colleagues have included a taxi driver, a chef, a gym instructor and a publicity agent. The earnings allowance of £55.19 per day for these people is ridiculous. Juries cost real money to self-employed people. To Lord Falconer they may be casual hourly labourers waiting at the dock gate. But then few peers or MPs deciding the future of juries can ever have served on them.
Apologists claim that any fault with juries lies in their operation, not in the system itself. I disagree. It is the existence of juries that distorts the rules of evidence. On the one hand they are considered more commonsensical than a judge, even if they cannot read. Such common sense is even ascribed to fraud jurors. Yet on one fraud jury to my knowledge only two jurors had a clue what was going on. Their verdict was determined, one said, by the “niceness” of prosecuting counsel.
