This would take either the form of trial by hot water, requiring Mr Tuttle to plunge his hand into a cauldron of boiling water to retrieve a stone; or trial by cold water whereby the accused would be trussed up and hurled into a lake. If his injuries healed within three days, in the case of the former, or if he sank, in the case of the latter, God had deemed him an innocent, if slightly burned/drowned, man. If his seared palm still appeared a bit bloody and charred, or if he floated (as many defendants did, simply because the way in which they were tied up created a buoyancy effect), this was God delivering a guilty verdict.
Following the Norman Conquest, Mr Tuttle would have had the option of trial by combat (which from the looks of him, he would be sensible to take), with his accuser or their proxies; but it was not until the thirteenth century that something approaching a trial based on evidence, rather than wanton violence, emerged. We’ll turn to that shortly.
In the meantime, before we move away from the accused, we should say a word about his fate upon (inevitable) conviction. A period of custody in one of Her Majesty’s prisons is the most severe sentence the court can pass. Yet, the idea of deprivation of liberty as punishment is relatively modern. Anglo-Saxon and Norman sentencing offered a buffet of hanging, eye-gouging, testicle-extraction, nose-and-ear removal (a favourite of King Canute for female adulterers), fines, reparations and other creative facial and bodily mutilation. By the dawn of the Plantagenets and the reign of Henry II (1133–89), punishment for many crimes was standardized as the lopping off of the right hand and foot and banishment from the realm.7
Bodily mutilation of various grisly forms persisted through Tudor times, usually culminating in death. Public humiliation, including pillories and public whippings, were available for less serious matters until the late nineteenth century. Meanwhile prisons, first built in the twelfth century, were mainly used to hold prisoners awaiting trial or to detain debtors. From the early sixteenth century, houses of correction fell into fashion for vagrants, combining confinement with forced labour, but it was not until the 1800s that imprisonment took over from executions and transportation to the colonies as the favoured mode of punishing offenders. Although Mr Tuttle’s offence would not then have cast him in the shadow of the noose, hanging remained for murder and treason until the abolition of the death penalty in 1965. Nowadays the courts also have an array of sentencing disposals aside from prison, including powers to impose, for example, a community order with unpaid work and an alcohol rehabilitation programme, and a compensation order. As was ultimately imposed upon Mr Tuttle back in twenty-first-century England by our possibly only semiconscious judge, whom we should probably take a look at.
The Judge
Turning our heads away from Mr Tuttle and towards the raised bench at the back, we can see the judge. The first thing to note is that she does not have a gavel. Gavels have never been used in English and Welsh courtrooms. The one way guaranteed to provoke the pedant in a British lawyer is to illustrate a legal story with a stock photo of a gavel. What Her Honour Judge Kerrigan QC does have is a fetching black and purple robe with a red sash and a short, frizzy horsehair wig; the working court dress of a Circuit Judge. She also has a relatively fixed sense of what the law is and how that should impact upon the directions she gives the jury and the sentence she bestows, which as we’ll see hasn’t always been the case.
The term ‘Circuit Judge’ refers to the six legal circuits or regions into which England and Wales have been traditionally divided – Northern, North-Eastern, Western, Midlands, South-Eastern, and Wales and Chester. Prior to 1166, justice was mostly administered in London by the king and his advisors sitting in the King’s Court (the Curia Regis) in Westminster, while out in the country justice was dispensed by smaller local courts, presided over by lords or stewards applying whatever kooky parochial customs took their fancy. It would mean that Tuttle would have received different treatment depending on where he lived. This created obvious inconsistencies in how the law was applied across the land, so at the Assize of Clarendon in 1166, Henry II sought to introduce a ‘common law’ applicable nationwide, by establishing a cadre of judges who roamed the circuits, sitting in pop-up courts (‘assizes’) and applying the new common law. A key feature of the so-called ‘common law tradition’ is that where legislation has gaps or ambiguities, or calls for clarifying interpretation by judges hearing cases, the rulings of the most senior courts (today the High Court, Court of Appeal and Supreme Court) have the force of binding law, and must be followed by lower courts. This means that if you want to know the law on a given topic, the statute alone only tells you half the story; you will need to know what gloss has been slapped over it by court precedents.8
In the criminal sphere, there gradually developed three tiers of court: the least serious matters were handled by non-legally qualified Justices of the Peace, or magistrates (about which more later); middling crimes were heard at Quarter Sessions, in which magistrates presided over jury trials; and the assizes, with their professional judges and juries, reserved for heavyweight felonies. In 1971, the Crown Court was created and absorbed the work of the assizes and the Quarter Sessions, leaving us with a two-tier court system for criminal trials – Crown Court and magistrates’ court. There are now around ninety Crown Courts nationwide, the most famous of which sits at the Central Criminal Court in London – the Old Bailey.
Initially, knights, clergy, ealdormen and lords were appointed as judges by the king. By the thirteenth century, the judiciary began to professionalize as lawyers took up the robes. In the modern day, almost all judges are former practising solicitors or barristers, appointed through an independent selection process (the Judicial Appointments Commission).
When Henry II came to the throne there were eighteen judges. Now there are over 35,000,9 including magistrates, District Judges, Circuit Judges, High Court judges, Lord Justices of Appeal and Supreme Court Justices, and all manner of part-time and specialist tribunal judges in between.
The role of the judge in the Crown Court remains strictly legal; the judge directs the jury as to what the relevant law is, and the jury applies the law as directed to the facts as the jury finds them to be. Upon a guilty verdict, the judge will pass sentence, but otherwise the power lies with the jury. The judge is not supposed to express any views about the factual merits of a case, even one as obviously open and shut as Mr Tuttle’s. So precious are we about the separation of functions that whenever an advocate wishes to argue a point of law during a trial – for example, to apply to ask a witness about their previous convictions – the jury is sent scurrying out of court so as not to be contaminated by anything that might be said during the legal argument between the advocates and judge.
The Jury
Craning our necks to the judge’s left reveals two benches of six attentive citizens – our iconic jury. Mr Tuttle’s jury, like any other, is a ragtag assortment of twelve randomly plucked justice-dispensers. Try as we always do to read the jury out of the corner of our eye, it is as reliable a science as tasseography. The only proven maxim for barristers is Beware the Nodding Juror, as a juror who bobs and smiles enthusiastically as you hammer out your closing speech will invariably be the one who delivers the verdict that crushes your case.
Every trial in the Crown Court10 calls upon twelve randomly selected members of the public aged between eighteen and seventy-five to hear the evidence and to unanimously (or, in certain circumstances, by a majority of ten to two) agree on whether a defendant is guilty or not guilty. Unless you have a criminal record or are seriously mentally unwell, anyone is eligible,11 and most of us will at some point be called to serve on a jury. However, notwithstanding its unchallenged position as the defining emblem of our justice system, the modern jury is also a product of a long process of evolution.
Around the same time as laying the foundations for the common law, Henry II also promoted the concept of a twelve-man jury to arbitrate land disputes, which in 1166 he extended into the criminal sphere in the guise
of the ‘grand’ or ‘presenting’ jury. Despite the name, this jury performed a vastly different function to the modern jury; investigative rather than adjudicative. Whenever a judge rocked up on Circuit to preside over a pop-up court, twelve free men were summoned and charged with reporting, under oath, any felony (serious crime, including murder, robbery and theft) that they knew of or suspected. Having pointed the finger and presented inculpatory evidence, the squealing grand jury would then sit back as God rolled up his sleeves and mucked in with trial by ordeal.
This persisted until 1215, when Pope Innocent III and the Fourth Lateran Council belatedly realized the dubious godliness of trial by ordeal and forbade clerics presiding over it. Instead, local men likely to know the circumstances of a crime were engaged as a fact-finding band of investigators who would assemble at court, pool their knowledge and determine guilt. In this model, the ‘grand’ jury – which over time grew to twenty-three members – were still responsible for ‘presenting’ the accused – agreeing that there was a case for him to answer – with the smaller, ‘petit’ twelve-man jury then proceeding to hear the evidence at trial.
The idea of a grand jury acting as a filter to determine whether someone should face trial died out in England and Wales in 193312 (although is still alive in American criminal proceedings); but the twelve-strong jury remains our touchstone. Originally deployed to settle civil disputes as well, juries are now the near-exclusive property of the criminal courts. The nature of a jury has morphed over the centuries from a gaggle of local Poirots expected to have first-hand knowledge of the allegation they were trying, to a disinterested body of strangers receiving evidence from sworn witnesses. In stark contrast to the thirteenth century, today’s jurors are expressly prohibited from conducting any investigations or having any prior knowledge of the parties involved in, or the circumstances of, a criminal case. None of these twelve know Mr Tuttle, or, prior to the start of the trial, knew how strongly he felt about the encroachment of his neighbour’s weeping willow over the boundary fence.
As a juror, you can often feel like a spare part, waiting backstage for days, called into court hours after you arrive and shunted out again whenever a lawyer stands up to boom, ‘Your Honour, a matter of law has arisen.’ It would be easy to gain the impression that jurors are the least important people in the courtroom, rather than central to the entire process, so it is probably worth considering for a moment why we still cling to the ideal of the jury.
The first reason usually offered is the jury’s independence from the state. The signing of Magna Carta at Runnymede on 15 June 1215 is often cited as fundamental in this regard. The best-known constitutional landmark in English and Welsh legal history marked the denouement of an entrenched dispute between King John I and some seditious land barons plotting his overthrow. In reaching an uneasy accord, the king agreed to cede the monarch’s absolute power and become bound by common law. Among the sixty-three chapters initially enacted in the treaty, numbers thirty-nine and forty stand as the two with which people today will be most familiar:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.
Popular re-telling of Magna Carta tends to gloss over the fact that within three months of it being signed both sides had reneged on their obligations and the king had persuaded Pope Innocent III to annul the charter altogether. It was only the following year, when John I died and was succeeded by nine-year-old Henry III, that Magna Carta was reissued as a sincere royal acknowledgement of the people’s rights, sowing the seeds for democratic government, the rule of law and freedom of expression.
So, in chapters thirty-nine and forty, we see a grounding for jury trial, or ‘lawful judgment by one’s equals’. In reality, the land barons were keen on these clauses because injecting their own people into the adjudication process increased their chances of future land disputes with the king being settled in their favour. However, this self-interest should not detract from the underlying merit: in a battle with the state, the inclusion of an independent, non-state actor in the adjudication process is a necessary safeguard against oppression.
And so it has proved with criminal trials. No matter the perceived strength of the prosecution case, if the jury has a feeling that something is not quite right – if the prosecution seems oppressive or unjustified, or the jurors don’t share the judge’s apparent faith in the bona fides of the prosecution witnesses – no one can stop them acquitting the defendant. This was the take-home lesson from a famous 1670 Old Bailey trial of two Quakers, William Penn and William Mead, for ‘unlawfully and tumultuously’ preaching outside a church. When a rebellious jury led by a man called Edward Bushel refused to return guilty verdicts in the face of a strong prosecution case, the judge’s response was:
Gentlemen, You shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it.13
Any modern juror forced to sit through an afternoon of interminably dull evidence, waiting pained for a judicially sanctioned smoking break, will no doubt sympathize. After the tobacco-and-fire-starved jurors were duly imprisoned for contempt of court, Bushel took his plight before Chief Justice John Vaughan, who ruled that jurors could not be punished for acquitting according to their conscience, thereby consecrating the jury’s hallowed reputation as the bulwark of individual liberties. While the jury has to accept the judge’s directions as to what the law is and how it applies, the verdict is entirely a matter for the twelve angry laypeople.14 In the eighteenth century, many juries fought back against the widespread use of the death penalty by committing what was known as ‘pious perjury’, and returning verdicts deliberately designed to circumvent capital punishment (for example by undervaluing stolen goods to render an offence of theft a non-capital crime).15 In the famous articulation of Lord Devlin: ‘Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.’16
The second popular justification for juries is an appeal to democracy. Bringing the life experience and oft-acclaimed ‘common sense’ of twelve ordinary people to bear on the fact-finding process is important not just in adjudicating disputed matters of fact (i.e. which witness is lying), but also in determining questions of contemporary mores. If criminal law sets the boundaries of interpersonal behaviour, democracy arguably demands that the interpretation of those boundaries meets with public consent. For example, a key ingredient to proving offences under the Theft Act is dishonesty, the legal test for which requires that the defendant acted in a way that was dishonest ‘according to the ordinary standards of reasonable and honest people’, and that the defendant knew that his conduct was dishonest by those standards.17 So pooling their respective experience and values, the jury firstly determines the moral question – what is dishonesty here? – and then the factual question – did young Steve McThief know he was being dishonest? A trial I prosecuted early on in my career centred on whether a young beauty therapist, Chantelle, who had picked up a mobile phone dropped in Asda and flogged it in the pub, had acted dishonestly. She insisted with wide eyes that it was not dishonest – finders keepers, losers weepers. The jury disagreed – this was blatantly dishonest by the standards of upstanding Bristolians, and it was clear from her unimpressive answers under cross-examination that Chantelle knew as much.
Mr Tuttle’s case itself stands as a further case in point. He claimed that he had used reasonable force acting in self-defence. If the jury accepted that the blind complainant had indeed swung for the ginormous Tuttle, they would need to consider whether Mr Tuttle’s response – two jabs to the mouth topped off with a slap – was ‘reasonable’ in th
e circumstances as Tuttle honestly perceived it to be. What is ‘reasonable’ in these cases is a value judgment entirely for the jury.
As it happened, the jury either disbelieved his account entirely, or believed it but were sure that he was not using reasonable force against his blind opponent. We will never know which; juries cannot be asked about their verdicts nor do they give reasons. When the jury finishes deliberating and returns to court to be asked by the court clerk for the verdict, the defendant hears the foreman deliver only a one- or two-word verdict sealing his fate.
Of course, the jurors could only reach their verdict having heard evidence from the various parties who witnessed the alleged crime.
The Witnesses
Opposite the jury stands the witness box. Each witness, including Mr Tuttle if he so chooses, will enter the witness box – they do not, in the American, ‘take the stand’ – swear an oath or affirmation to tell the truth and give their evidence orally in the form of answering questions put to them by the advocates for each side. The prosecution witnesses go first. The prosecution advocate examines the witness ‘in-chief’, asking the witness open questions to elicit their evidence, before the defence cross-examine the witness through a series of short closed questions designed to undermine the prosecution case and lead the witness to the desired answer. The prosecution is permitted to ask brief clarifying questions in ‘re-examination’. When it is time for the defence witnesses, the sequence is reversed.
The full spectrum of human behaviour is exhibited from this small, boxy wooden platform. Some witnesses are accomplished performers; others have to be reminded repeatedly, and in increasingly impatient judicial tones, to speak loud enough for the jury to hear. Some are captivating in their believability; one man I cross-examined looked towards someone in the public gallery before answering each question I put to him. When, for the benefit of the jury, I asked him why he kept glancing to his left before answering, and whether it was because his answers were being prompted, he unwittingly sparked hilarity among the jurors by looking to his left before replying, nervously, ‘No.’
The Secret Barrister Page 3
