The rules are designed to render the issue before the jury as nearly “objective” as possible. This is despite the purpose of juries being the application of lay subjectivity. Members are fed a crafted whodunnit for them to write the last act. A recent jury, asked to decide on a credit card theft, thus was not told that the bag in which the card had been found also held 100 other cards. This might have “prejudiced” its verdict. I should think it would.
The laundering at trials of details of motive, character, background and past record assumes that jurors are not commonsensical at all but stupid. They are too dim to form their own view of relevance and context. In which case, why have them at all? Magistrates and judges without juries know all the evidence before reaching a verdict. Limiting juries to “bare facts”, heavily spun by counsel, does not purify their decisions but half-bakes them.
Even if the rules of evidence were updated it would not validate the system. My other two cases, some time ago, involved a drunken attack at Waterloo station and an Edgware Road fraud. All could have been handled by a magistrate, recorder or judge, with assessors if need be, as on the Continent.
British criminal justice is an extension of Britain’s addiction to the detective story. What should be a down-to-earth investigation of forensic details by those trained to do so is distorted, censored and dramatised to keep an audience occupied. In our case a man had been six months in prison while this drama was being prepared, only to be found innocent. He should be able to claim loss of earnings. A pub fight ended up costing the state tens of thousands of pounds. To what end? The best I have ever heard said of juries, even by lawyers, is that “they usually get it right”. That is what judges are paid to do.
Jury justice is guesswork justice. In his celebrated record of a trial, The Juryman’s Tale, Trevor Grove describes the breathless moment when his jurors, having found the accused guilty, wait for the previous convictions to be read out. They wait to know, he says, “Were we right?” In other words, having been denied crucial pieces of the jigsaw, had they correctly guessed the missing pieces? The judge would tell them, for he had known all along. It was all a judicial game.
Most countries — no less liberal and progressive than Britain — regard the assessment of legal evidence as a matter for trained professionals. Likewise surgeons decide on the type of operation, teachers on the aptitude of pupils, engineers on the strength of bridges. Many such decisions have “subjective” elements, but are not given to lay determination. A mass of serious quasi-judicial decisions are now taken by civil servants without juries. Children may be removed from families, the mentally ill incarcerated, homes compulsorily purchased, communities wrecked by roads, prisoners denied parole. Criminal trial by jury is an exhibitionist archaism.
Worse, I believe, is the impact juries have on sentencing. Public opinion tends to complain that juries find too many guilty people innocent. The jury acquittal rate has certainly risen from 32 per cent in the 1970s to 42 per cent in the late 1990s. The outcome of a guilty verdict is less noted, yet those found guilty after choosing trial by jury are two to three times more likely to get a prison sentence than those found guilty on similar offences before a magistrate. They are three times more prone to a custodial sentence than on the Continent, where prison is used principally for violent offenders.
I am convinced that the British (and American) fixation with imprisonment is a direct result of the theatricality of jury trial. It is graphically illustrated in Graham Burnett’s A Trial by Jury and the novels of Tom Wolfe and John Grisham. Not for nothing are courtroom dramas the stuff of movies in Britain and America, and strangely not on the Continent.
In one of my cases, the judge sentenced an assailant to a fine and a “binding over”. Though in my view this was reasonable, other jurors were infuriated. They had spent two days on a case, found the man guilty, and he was being “let go”. Some worried that he might attack them outside the court, a frequent concern of jurors. Others thought their deliberations had been a total waste of time. They identifed guilt with prison, not with alternative forms of punishment, even if they were more cost effective. The verdict should echo with a prison door banged shut. It should “send a signal”.
The horror of imprisonment may influence some jurors to leniency but it also hangs over those they find guilty. Juries expect the guilty to go to jail. Judges cannot be unaware of this pressure, to which the press and politicians add their pennyworth. In Britain the process of sentencing is deprofessionalised and made a running sore between judges and public opinion — and home secretaries.
To reform this system the Lord Chancellor does not need “research”, just the guts to face down his colleagues at the Bar. Juries underpin a costly superstructure of Bar employment and self-advertisement. Barristers fight like cats to retain it, as they did to keep solicitors from rights of audience in court.
The best hope at present is that the crumbling legal aid service will simply break under the present strain. The bulk of aid now goes to a handful of senior counsel in high-profile jury trials. The system is becoming too expensive to be fair. And this is on top of the £3.5 million spent protecting juries against nobbling.
The time has come to professionalise justice. Whether the continental investigatory system is adopted or the Anglo-American adversarial system retained, “judgment” should be in the hands of magistrates and judges, maybe with professional or even lay assessors. Their decisions are subject to oversight and appeal, and to the law of Parliament. They can still hear the cry of the public outside the courtroom. But amateurism and guesswork, even if “usually got right ”, are not good enough. Judges are paid to judge. They should pull themselves together and do the job.
HOW IT ALL BEGAN
ALEX WELLMAN
JOIN THE DEBATE
Should the jury system be scrapped?
Email debate@thetimes.co.uk
