The Juryman's Tale

by Trevor Grove

  So the original sentences were quashed. Sixteen years became thirteen. Korkolis’s twenty-five would now be twenty.

  George Fraghistas and DS Hawkins did not seem too dismayed. My own feeling remained that the judge who had sat through all four months of the original trial, listened to every syllable of the evidence and watched every nuance of the defendants’ behaviour had probably got it right in the first place. But my reaction was only to be expected. Once a jury has seen a case through to its climax, any tampering with the outcome is bound to be something of a let-down.

  The fact remained that Korkolis would be in jail for a very long time. Twenty years was still one of the severest sentences ever imposed for the crime of kidnapping for ransom in this country.

  Judging the Jury

  THE SACRED BULWARK

  The jury system is often under attack. How is it surviving in this post-Thatcher era, when so many institutions have been shaken to their foundations? What is its future? Is it safe? Does it deserve to be?

  Here is a dispassionate description of how it works by John Baldwin and Michael McConville in Jury Trials:

  Twelve individuals, often with no prior contact with the courts, are chosen at random to listen to evidence (sometimes of a highly technical nature) and to decide upon matters affecting the reputation and liberty of those charged with criminal offences. They are given no training for this task, they deliberate in secret, they return a verdict without giving reasons, and they are responsible to their own conscience and to no one else. After the trial they melt away into the community from which they are drawn.

  Or as Professor Glanville Williams puts it:

  There is no other comparable activity in life in which experience is not regarded as an asset, no other social institution with such haphazard and fleeting membership.

  On reading that, a German or a Spaniard might shake his head in disbelief at our devotion to such an amateur means of doing justice. Yet in Britain in the 1990s you are far more likely to run across a critic of the monarchy than someone prepared to say hard things about the jury system. Both are semi-mystical institutions. Both are the product of centuries-old tradition. And both are riddled with imperfections. But whereas even ardent supporters of the monarchy admit that it is founded on anachronistic principles, endearingly out of keeping with modern times, the jury remains a totem of the people. Although heavily criticised in some circles, it is as firmly rooted in the national psyche now as it was a hundred or two hundred years ago.

  Furthermore, in an age dogged by relativism and uncertainty, its function is admirably clear-cut: ‘The jury just says yes or no,’ observed Lord Devlin. ‘It is the oracle deprived of the right of being ambiguous.’

  Reactionaries and republicans can admire it equally. As an institution it is not only very old and very English; it can also be said to be gloriously democratic, uniquely classless, disinterested, down-to-earth and fair. As an instrument of justice, its efficiency might be questionable: too soft-headed, too prone to acquit, too expensive, say some. Too prejudiced, say others – against the police, for example. But in principle we approve of the jury as a check on oppressive or outdated laws. We like the idea of a lay tribunal standing between the polished professionals of the legal establishment and mere mortals in the dock. The population is raised in its own estimation knowing ordinary people have this role to perform. If the monarchy defines the public as subjects, the jury defines them as citizens – which has a sweeter ring to most ears nowadays.

  In other words, the British are deeply sentimental in their attachment to trial by jury. No British government in its right mind would abolish it.

  But that does not mean the jury system is sure to survive in its present form for ever and a day. It has some thoughtful enemies and a great many would-be reformers. They are chiefly to be found among the legal profession and in university law departments. They have produced quantities of literature on the subject. In the United States, where the jury is even more revered than in the United Kingdom, up there with the Constitution and the Declaration of Independence, there has been a prodigious amount of investigation. Some of its results have been disturbing. Others have had regrettable side-effects. The cumbersome and often distasteful process of jury selection, for example, has been strongly influenced by studies of how jurors of different backgrounds are likely to vote in certain kinds of case. The O.J. Simpson trial was not the first to give the impression that the composition of the jury was a more important factor than the evidence.

  In some respects, the jury system appears more vulnerable to attack in America than in this country. That is partly because we have been less hidebound and quicker to innovate. But it is also because over here the jury has been beating a quiet tactical retreat for decades. The public has a vague idea that trial by jury is the template for any case bigger than an unpaid parking fine. That is wildly inaccurate. Juries here have long since been dispensed with for most civil cases other than libel (unlike in the USA, where billions of dollars hang on jury decisions). Juries are hardly ever used in Coroners’ Courts any more. As for criminal cases, the overwhelming majority are dealt with not by juries but by magistrates. The estimated figure varies rather unsatisfactorily between 93 and 98 per cent, about two million cases a year. That leaves at most 7 per cent of cases to be tried by juries – more than half of which never even reach that stage, because the defendants get cold feet and plead guilty before they ever come to trial. In short, jury trial is very far from being the norm.

  In its dying months the last Conservative government was planning to reduce the number of cases heard by juries still further. The intention was to remove the accused’s right to opt for jury trial in what are known as ‘either-way’ cases – cases which may be tried either summarily or in a Crown Court. In future the magistrates, not the defendant, would take this decision. Jury trials cost a lot more and take much longer, and since the great majority of cases that come before the Crown Courts concern ‘either-way’ offences (70 per cent of them ending in guilty pleas), the savings in time and money would have been substantial.

  The proposal was actually based on a key recommendation of the Royal Commission on Criminal Justice under Lord Runciman, which reported in 1993. Geoffrey Robertson was one of many barristers who condemned this recommendation for threatening to destroy a valued right. But it might well have been implemented despite such resistance, had it not been that the government was unpopular and the then Home Secretary even more so. Newspapers thundered, the great British jury was reconsecrated and Michael Howard was cast as an enemy of the people, bent on removing the Englishman’s sacred right to trial by his peers. Even the Daily Telegraph opined: ‘Mr Howard’s admirable concern for efficiency, economy and speed risks running up against the requirement of justice in a wider sense.’

  Astonishingly, the present Labour Home Secretary, Jack Straw, despite his own vituperative attacks on the Howard proposals, wasted very little time in taking up exactly where his predecessor left off, relying on his party’s massive majority to brush aside accusations of hypocrisy. Lawyers right across the political spectrum opposed Straw’s Treasury-driven measure. ‘So much for human rights under new Labour!’ lamented Conservative barrister Sir Ivan Lawrence QC in a letter to the Times in October 1999. He might have invoked the famous words of the eighteenth-century judge and jurist Sir William Blackstone about the lure of new and arbitrary methods of trial:

  However convenient these may appear at first … let it again be remembered that delays and inconvenience in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.

  Those who know the jury system best do not always love it most. There are some serious indictments against i
t. The Louise Woodward trial was merely the latest case to have brought the system into contention. Hiller Zobel, the urbane judge who was in charge of those proceedings, might himself be counted as a pretty sardonic critic. After the 1992 OJ. Simpson trial he expressed this view of juries: ‘It is asking the ignorant to use the incomprehensible to decide the unknowable.’

  How would our own jury system fare if it were itself on trial, and we were to assemble a notional court to hear the case?

  PROSECUTING COUNSEL

  One of the jury system’s most outspoken opponents is Sir Louis Blom-Cooper QC. Oddly enough, he is not especially concerned about the competence of juries, which is where most critics stick their darts. His view, which is supported by American findings, is that generally speaking juries are as good at reaching acceptable verdicts as magistrates and judges sitting alone. What he objects to is the cost and cumbersomeness that juries entail, and the fact that they do not have to reach reasoned judgements for which they are accountable. One day juries will simply wither away, he thinks, ‘driven to it by virtue of the economies’.

  He is a highly civilised man, a member of numerous public inquiries, a former Guardian and Observer legal correspondent, an author and, as ex-chairman of the Howard League for Penal Reform, hardly an illiberal figure. But he is sceptical about the mythology that attaches to the jury system. There is ‘a purely gut feeling that somehow trial by our peers is better’ – when it is not even truly by our peers, as so many people are excluded from jury service. It is not really democratic either, since jurors are not elected.

  ‘My rooted objection in a democratic society is that juries are unaccountable,’ he said. He had just finished a new book, The Birmingham Six and Other Cases: Victims of Circumstance (Duckworth), published in the winter of 1997. It draws attention to the difficulty of dealing with perverse acquittals and wrongful convictions when the decision-makers are absolved from explaining their actions. Yet ‘insistence on reasoned verdicts would lead to the demise of trial by jury’, he writes. ‘No twelve good men and women could compose proper, adequate and intelligent reasons this side of Doomsday …’ As things stand, if a jury acquits, they are answerable to nobody: there is no appeal against an acquittal as there is on the Continent, only against a conviction. (Senior policemen make the same point, arguing that it is unjust to rule out an appeal supposing new evidence of guilt or even a post-acquittal confession should come to light.)

  Sir Louis also disapproves of the jury’s famous freedom to ignore the judge’s instructions and reach a verdict according to its conscience – the very thing that sets it so high in the eyes of its champions. He told me how back in the 1970s he defended one of a group of people led by the peace campaigner Pat Arrowsmith, who had been charged under the 1934 Disaffection Act for leafleting troops at Aldershot. The evidence against them was overwhelming. The trial lasted fifty-one days. Afterwards, some of the jurors revealed – as they were allowed to in those days – that the majority had decided to acquit after just five days.

  Not only was this a colossal waste of money, said Sir Louis wryly. ‘It was a perverse verdict, because they hated the Act. I personally object to that. If Parliament has passed a law and if they were true to their oath, they were bound to find them guilty … I don’t think it is right that twelve ordinary people who are not appointed or elected by anybody should come along and refuse to give effect to the will of Parliament.’

  Sir Louis would prefer the trial process and the weighing of evidence to be done by professionals. ‘You wouldn’t want a butcher to take out your appendix.’

  There are many objections to this view. But one of the strongest is that judges sitting alone would become ‘case-hardened’, which is another way of saying more inclined to take a dim view of mankind and less prone to give the accused the benefit of the doubt. (The problem with judges, wrote G.K. Chesterton, ‘is simply that they have got used to it… They do not see the awful court of judgement; they only see their own workshop’.) Sir Louis scoffed at the suggestion. Ninety-nine per cent of crime is in effect tried by judges and magistrates without juries, he said, exaggerating only slightly. Are they case-hardened? And then there are the Diplock courts in Northern Ireland, where judges sitting alone have been trying terrorist-related cases since 1973 (the equivalent court in the Republic of Ireland also sits without a jury, though with three judges on the bench, not one). Sir Louis had been doing a lot of work in Northern Ireland recently and had been able to observe what was going on at close quarters. ‘The Diplock courts have been a huge success, absolutely huge,’ he argued, thrusting into my hands a book called Judge Without Jury, by John Jackson and Sean Doran of Queen’s University, Belfast (Clarendon Press, 1995).

  ‘I think judges have increasingly come to regard the jury system as expendable. People would say “Oh God help us if we had to appear before Judge So-and-so who’s thoroughly prejudiced.” ’ But that was not the right conclusion, Sir Louis explained. Being a summing-up judge and being a decision-making judge were very different functions. ‘Once you are the decision-maker and you are answerable for your decision and have to give your reasons, you breed a very different kind of judge. The Diplock courts have shown that. The judge has to sit down and give his reasons: that is such a discipline.

  ‘The real objection I have to the proponents of jury trials is their claim that this is a fundamental freedom,’ he reflected, alluding to the absence of British-style jury trials in the rest of Europe. ‘If you go to Strasbourg and say “I was deprived of trial by jury, a breach of my fundamental freedom”, they’d laugh at you.

  ‘It may be that it is a system that suits the English, deeply rooted in our culture and valuable for that. The Americans are worse about it than we are. They are besotted with it.’ But an advanced society, Sir Louis believed, did not need the safeguard of the jury system. It was better-suited to illiterate societies, where you did not have the spotlight of the media to keep an eye on the judiciary.

  Just before I left, he stood over me chuckling as I copied out a line from the philosopher and jurist Jeremy Bentham, writing in 1843. The jury, wrote Bentham pithily, was ‘an institution admirable in barbarous times, not fit for enlightened times, necessary as matters stand in England’.

  Sir Louis’s new book refers trenchantly to the Morris Committee’s report on the jury system in 1965 which, while stressing that the system of trial by jury needed to be maintained as ‘fair, sensible and workable’, did not wish to prejudice any future inquiry into its merits, ‘as to which we realise that there is room for divergent views’.

  Sir Louis thinks this invitation to review the workings of the system was too lightly cast aside. His last words as he saw me out into his pretty Islington street were about the ‘inscrutability’ of the jury. He would be in favour of allowing research into its workings, he grinned wolfishly. ‘Then the whole thing would collapse.’

  DEFENDING COUNSEL

  Helena Kennedy has almost no qualms about juries. She is an engaging, energetic, much admired QC who has made something of a speciality of defending alleged IRA terrorists. She was preparing to do so in a forthcoming case the week I saw her. Despite the notorious miscarriages of justice in which men had been wrongly convicted of terrorist offences, she did not feel it was juries that were to blame.

  ‘I believe juries do a tremendous job,’ she shouted. We were eating pizza in a noisy basement near her Doughty Street chambers. She was about to be ennobled as a Labour baroness, and was off to see Garter King of Arms that very afternoon, so she refused a glass of wine. Her car had been clamped that morning which meant that she had arrived late, beaming apologies: we had to talk and eat fast. This is probably an habitual condition for the ultra-busy Helena Kennedy.

  ‘I think juries are very good. Their sixth sense is working, their sense of smell. They sniff the air and get a feeling about whether people are truthful or reliable. They may go in with a whole set of prejudices one way or the other but what always impresses me is that
they can filter them out. They can make distinctions which are really very subtle.

  ‘You can see the effect in the verdict, when they find a defendant guilty on some counts of the indictment but not on others. Collectively this group of people are better than the sum of their parts. They do rise above their prejudices. I believe people are perfectly capable of taking on that enormous sense of responsibility which comes with jury service. I think they are wonderful.’

  I remembered Helena saying to Ruby Wax, on the latter’s TV chat show in June, ‘Juries feel a pride in what they are doing. I have to bring out their better selves.’

  But was there nothing she could suggest to improve the way jury trials work? There was.‘I am very cynical about what goes on in the US,’ she said.‘I think it is all ghastly. But one of the things we could learn from them in longish trials is the swearing-in of a thirteenth juror.’ This would clearly be a sensible reform. The idea is that the extra man or woman sits in on the whole trial, just as the other jurors do, but only steps into the box should one of them fall ill. This would avoid the problem that arises when for one reason or another several people drop out of a jury, making a majority verdict impossible.

  I wanted to know what she thought of the Roskill Committee’s proposal in 1986 that ‘for complex fraud trials … trial by a judge and two lay members should replace trial by judge and jury’. The committee took the view that in such cases many jurors were out of their depth. The recommendation was not implemented. Opponents argued that the evidence on which it was based was sparse and that if implemented it would be used to pry the jury away from other types of ‘complex’ cases. Nevertheless, of all the proposed reforms of the jury system, it is the one most commonly advanced. Non-lawyers share the feeling that randomly picked, unqualified juries should not be burdened with such cases – and potential jurors live in fear of being assigned to one. Helena Kennedy takes a robust line: ‘The truth is that fraud trials are not about fine-line accountancy. They are about whether somebody was on the fiddle, somebody was being dishonest’ – matters on which juries are quite capable of making up their minds.