The Juryman's Tale

by Trevor Grove

  On the very rare occasion that there was any trouble and his gown was insufficiently intimidating, Roy would send for the clerk: the wig usually did the trick. Besides, wigs and gowns served another purpose: they raised people’s expectations of what was wanted of them.

  Roy and Sarah made an excellent double act. On the one hand they sang the praises of the jury system with genuine enthusiasm. On the other they did a good job of demystifying it in a thoroughly down-to-earth manner. Our jury would have been tremendously reassured had we had a half-hour chat with these two before we took our places in the jury box. Come to think of it, every jury should have a Roy and Sarah to give them a pep talk before going into action.

  THE COURTS CORRESPONDENT

  The London Evening Standard had its correspondent in court for the beginning and end of R. v Korkolis and Others. A South American-style kidnap in the middle of London was a big story. Like other newspapers, it had observed a blackout during the nine days of the kidnap itself, at the request of the police. Once the four men had been charged, the contempt of court laws had meant that the Standard could do no more than report the bare facts of the case. Now for the first time Paul Cheston could give his readers a full account as it emerged at the Old Bailey.

  I did not know Cheston, who had been the Standard’s courts correspondent for the past four years. Something of a barrister manqué, he had achieved his ambition of becoming a courtroom specialist after years of general reporting. Now he found it a bit of a drug, moving from Crown Court to High Court to cover the most interesting cases of the day. We met, long after the Korkolis trial was over, in the Fleet Street branch of El Vino’s, once the haunt of journalists but now, since the diaspora of the newspapers from EC4, overwhelmed by lawyers.

  Cheston has attended hundreds of jury trials and reported on some very odd behaviour by juries. But he still believed strongly that serious crimes, libels, and what he called in the jargon of our trade ‘human interest’ cases should be heard by juries. Like so many other regular court attenders whom I have spoken to, he made an exception for big City frauds. In such cases, he thought, some sort of tribunal system was long overdue. ‘As you know,’ he said, ‘anyone with any brains, finding himself on a jury panel of a hundred and fifty, told that this is a complicated City fraud trial and likely to last between six months and a year, will get off. There are so many get-out clauses you can pull one out of a hat. You end up with a jury consisting of the twelve people who haven’t been able to think of an excuse.’

  There was another problem here, a version of the Stockholm Syndrome, where jurors listening to a long-running case in the Chichester Rents (the dreary Old Bailey annexe in Chancery Lane specialising in frauds) begin to sympathise with the only other person in court who is banged up there day after day against his will, i.e. the defendant.

  Paul Cheston long ago gave up trying to predict which way a jury would jump. He was so often wrong. The police always said that if the deliberations dragged on for any length of time, it was a bad sign for the prosecution, but that was not always true either. Overall he thought juries reached understandable, if not invariably the ‘right’ verdicts. Although he had never sat on a jury himself, he imagined that the ‘beyond reasonable doubt’ requirement could sometimes prevent jurors from seeing the wood for the trees. He was also keen on the idea that the defence should be required to be more forthcoming about the line it was going to take at an early stage in the trial. Apart from making the jury’s job easier, it would be tremendously helpful to accurate court reporting.

  Cheston covered the ‘Jury from Hell’ case in a memorable report for the Evening Standard in 1996. The jury was trying a man called Ray Lee for the killing of a young police constable in Ilford. ‘For four days of fruitless deliberations,’ Cheston wrote, ‘the jury drove barristers to anger and frustration, caused untold anguish to PC Walters’ parents, left an usher in tears and the tax-payer with a £250,000 bill.’ The jury, who appeared to be unusually young and immature, squabbled over the question of smoking, sent notes complaining about each other to the judge, demanded a change of hotel to one with a gym thirty miles away, turned up late one morning because some of them had been working out, and were also hit by illness. Two of the jurors had spent their breaks canoodling in the corridor outside the court. Eventually, when they failed to reach a verdict, the judge dismissed them and ordered a re-trial.

  He also reported on the infamous case of a double murderer convicted twice in the same year, 1994. The first guilty verdict had been quashed after it was revealed that some members of the jury had tried to contact the dead murder victims with an ouija board.

  There was a trial at Snaresbrook Crown Court in 1993 where a jury had had to be dismissed when, after three hours’ deliberating over a robbery case, they had sent the judge a note asking: ‘Is it a question of whether we have to decide whether the person is guilty or not guilty?’

  Despite such occasional horror stories, Cheston’s faith in the system remained unshaken. In practice he thought the most urgent improvement could be brought about by making it harder for well-qualified people to dodge the draft – exactly the sort of people who might have pulled the Ray Lee jury back from the brink of hell, tossed the ouija board in the bin and told the Snaresbrook jurors what they were supposed to be doing.

  MEMBERS OF THE JURY

  I have talked to numbers of people who have done jury service. Only one or two complained that their faith in the system had been shaken by the experience. On the whole ex-jurors say they found it absorbing and worthwhile.

  My sister-in-law was the foreman of a jury in Sydney which tried a man facing nine charges of rape – a crime notoriously difficult for juries because of the absence of third-party witnesses. When they found him guilty, they had not only the intense satisfaction of learning that he had a string of previous convictions but the glee (her word) of knowing that they had rid the city of the odious ‘Executive Rapist’: this was what the newspapers called him because the victims he stalked and raped were all professional women. The problem for the jury was that these women were so composed and articulate that they did not come across as vulnerable in the witness box. Some of the jurors took a good deal of convincing that they had been violated in a most horrible way and not simply inconvenienced by a smooth talker. He was sentenced to seventeen years. (And paroled, to the jurors’ fury, after six.)

  The writer Drusilla Beyfus had a quite different experience as a juror on a London theft case. Her jury felt in their hearts that the accused man was guilty, but found the prosecution evidence so thin that they acquitted. Many years later, Miss Beyfus still remembers the trial vividly, and thinks that the jury’s behaviour was a tremendous vindication of the system: the jurors determinedly put aside their gut instincts and stuck to their oath to try the accused ‘according to the evidence’.

  Middle-class people often say they were impressed by the conscientiousness of their fellow jurors. Their own prejudices about the prejudices of others were shaken: taxi drivers are not necessarily right-wing; blacks can be harder on blacks than whites; women are often tougher on women than men; the well-educated may be less clear-sighted than the ignoramuses; the old can be more broad-minded than the young. TV producer Jenny Barraclough told me that when she was on a jury trying a man on a grievous bodily harm charge, she had been completely taken in by his mother, who testified very touchingly that her son was a good boy at heart. The other jurors, all East Enders, were much more cynical. They quickly – and correctly – put her right.

  The keenest supporters of juries are usually those who have served on one. I have a lawyer friend who is distinctly iffy: he has never been a juror. His wife is an ardent supporter: she has.

  A publisher, Sue Bradbury, wrote to me to say that her jury service in East Croydon had given her faith ‘in the ability of twelve perfectly ordinary people to deliver a just verdict, in spite of the woman who thought everything was a frame-up by the police and the old man who confessed to being a
“chronic bad judge of character” … It was some time ago now, but I remember it as an experience both humbling and heartening which I thought everyone ought to have.’

  She added a reflection which would have pleased Sir Stephen Tumim. Her jury had been trying a shoplifting case. ‘At one point,’ she wrote, ‘the judge addressed us and said we were probably wondering about the financial wisdom of taking up the precious time of twelve busy people to debate a packet of prawns worth £2.73. “May I remind you,” he said, “that the packet of prawns represents this man’s honour, his good name.” He’d paid nearly £30 for everything else in his trolley and walked out of Tesco’s with a soggy packet of prawns hidden by a plastic bag…’

  Even a juror who had been on a long fraud trial, a fate most jury panellists move heaven and earth to avoid, told me she found the experience fascinating. A kind of hostage mentality had held the jury together through six months of nerve-jangling boredom. Yet they would have been livid had the judge cut the trial short and told them to acquit, which at one point they had feared he would. They were so involved they desperately wanted to see it through to the end. Which they did. The let-down was that after the emotionally demanding experience of deciding to convict, the defendants were given piffling sentences. ‘One of them got just six months,’ Rachel Halliburton said. ‘That was no more than our own “sentence” had been.’

  Sometimes a juror’s enthusiasm gets out of hand. A woman member of the jury that was discharged after failing to reach a verdict in the first ‘soccer bungs’ trial involving footballers Bruce Grobbelaar and John Fashanu in 1997 turned up for the re-trial at Winchester Crown Court. She wanted to ‘champion the case for the defence’. She offered to reveal details of how the first jury had split. The judge had to silence her by threatening her with imprisonment.

  Being on a jury is not pure fun. Everyone who has done it moans about the tedium and the time-wasting. Many find the deliberating process draining. In some cases the experience can be profoundly distressing. Jurors in a murder trial may have to listen to accounts of appalling violence and depravity. They may be told to look at close-up pictures of a dead child or a mutilated woman. Nauseating exhibits are passed around the jury in a rape case. The jury in the trial of Peter Sutcliffe, the Yorkshire Ripper, had to look at scores of stomach-turning photographs and handle murder weapons that made them shudder with loathing. Bruce Houlder QC has had to put many juries through this sort of ordeal. He told me he always takes great care to steel jurors before showing them such horrors.

  The jurors trying the murderer of Harry and Nicola Fuller at the Old Bailey in 1994 had to listen to a tape of Mrs Fuller trying to call the police for help while the telephone receiver filled with blood from her shattered jaw. They then heard the shot that finally killed her. ‘You cannot believe the shock that runs through you,’ said one of the jurors who had had to hear the tape. ‘The fear when you know this is what happened.’

  In a Daily Mail article in 1996 headlined ‘Can jury service damage your health?’ Angela Neustatter quoted cases of jurors being physically sick, having panic attacks and suffering acute depressions. One does not like to think what the Rosemary West trial jury had to go through. It is small comfort to know there were counsellors at hand.

  There was no counsellor to help Ann Routley after her scarring experience as a juror in 1993. Four years later she was still deeply troubled by her belief that she had helped to send an innocent teenager to prison for manslaughter.

  Seventeen-year-old Paul Esslemont was accused of killing a baby boy by battering him to death with a golf club. Ann Routley, a musician then in her late thirties, was on the jury at Birmingham Crown Court. She had never done jury service before. And she would never do it again, she told Gill Martin for an article in the Evening Standard in June 1997.

  Any murder case must be distressing for the jury. This one was particularly so. The judge warned them that they would have to look at photographs, but that the face of the dead baby boy, Carl Kennedy, would be masked. ‘I didn’t sleep the night before we saw the pictures,’ Ann Routley recalled. ‘In the jury room we had the choice to see pictures without the masking tape. I decided to look at these. There was a sense that all this had happened and had to be faced.’

  She described the trapped feeling many jurors must experience: ‘You are pulled off the street, which is the value of the jury system, and given the most horrendous responsibility and not allowed to get out of it.’ The judge had said, ‘If you say he is guilty when he is innocent there’s a killer on the loose – and if you say he is innocent when he is guilty there’s a killer on the loose.’

  A devout Christian, Ann felt the burden of what she had to do dreadfully. She had been sorry for the young boy in the dock and had smiled at him every day ‘to reassure him that we were there to give him a fair hearing, and that we wanted to believe the best of him’.

  Despite her own doubts about the prosecution evidence, the jury of five men and seven women found him guilty of manslaughter by a ten-to-two majority. ‘When the verdict was announced all of us were crying,’ Ann remembered. ‘One woman juror threw up. I can’t describe how awful it is to stand there and hear the foreman say “Guilty”.’

  Her misery continued after the trial, compounded by the fact that she felt she could not talk about it to a solitary soul because of the contempt laws. Convinced of Esslemont’s innocence, she finally screwed up the nerve to go and see his barrister. ‘He had never met a juror before me,’ she says, ‘and it had never occurred to him what it costs people to do their civic duty.’ She started a scrapbook. She wrote the boy letters. Eventually she went to see him at the Feltham detention centre for young offenders. And when his first appeal failed, she prompted the BBC to make a Rough Justice programme about the case. Other television appearances followed. There was a second appeal. This one was successful. When Paul Esslemont was finally released, on 4 July 1997 (‘Independence Day!’ Ann told me delightedly on the telephone), he gave a public thank-you to the juror who had worked so hard on his behalf.

  Living with the fear that one has contributed to a miscarriage of justice must be appalling. Lord Devlin wrote that ‘the sleep of the final verdict is disturbed by the nightmare of miscarriage’. In fact most such errors of judgement are less the jury’s fault than the result of inadequate or false evidence. Ann Routley told me that even though they were divided, she still felt her jury had reached the right decision, given what they had to go on. ‘Despite my belief that Paul Esslemont was unjustly convicted, I still have faith in the system,’ she said.

  After all, there may be something to be said for the proposition that if a mistake is made, it is preferable that it should have been made by twelve disinterested people acting in good faith and representing the community rather than a solitary judge representing only the law. Or as Lord Shawcross once observed, ‘It is better to risk a bad jury making a mistake in a single case than to have a bad judge able, if not checked by a jury, to make mistakes throughout his judicial career.’

  Ann Routley’s experience was not typical. However, in extreme form it not only underlines the seriousness of the jury’s task but demonstrates the conscientiousness it can inspire in those called on to perform it. And looking back, she says, she did find it stimulating as well as harrowing. ‘After all, Twelve Angry Men is my father’s favourite film.’

  THE AMERICAN EXPERIENCE

  Nowhere is the jury system more highly revered than in the United States, where Twelve Angry Men virtually has the status of a sacred text. And nowhere are its shortcomings more cruelly exposed. The reverence dates back to pre-revolutionary times, when the English jury system, by a nice irony, provided a legal means of subverting the English colonial power. The shortcomings go back a good way, too: at the start of this century Mark Twain wrote the scathing words quoted at the beginning of this book: ‘The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury.’

  Of course,
that is the sort of thing a non-admirer might have said about juries anywhere any time. The real problems with the American legal system are of more recent vintage. One thinks of the trial of the four Los Angeles policemen, acquitted of assaulting Rodney King despite a video showing them doing exactly that; of the first O.J. Simpson trial; and of the hung juries which failed to agree that Lyle and Erik Menendez had (or hadn’t) murdered their parents in cold blood. No one suggested that these juries failed to act according to their consciences. But there was something distinctly unsettling about how they were chosen and why they acted the way they did. Some British people would want to include the Louise Woodward jury in this catalogue but, as I have said before, it seems to me it was the defence lawyers, not the jurors, who got it wrong in that instance, and the judge evidently agreed.

  During the same decade that these criminal cases hit the headlines, there was a growing number of eye-watering jury awards in commercial law suits, personal injury claims, discrimination cases and the like. It was a trend that was already well under way in the 1980s. By 1992 the annual cost of civil liability cases tried by juries was estimated to have reached an astounding three hundred billion dollars a year.

  The upshot is that there have been outbreaks of serious concern in the US about the jury system. It was persuasively expressed by Stephen Adler in The Jury: Disorder in the Court, which begins like this:

  We love the idea of the jury but hate the way it works. We celebrate the jurors’ democratic power but no longer trust the decisions they reach. We say we have the best system in the world, but when called to serve, most of us do everything we can to duck out.