by Trevor Grove
I certainly endorse that last complaint, since it applies here too. But as to the others, it is with relief that one reads some of Adler’s more hair-raising passages and realises that the worst excesses he is describing could not happen here. For one thing, British juries are no longer involved in civil trials other than libel cases: even there, the freedom which they used to have to dish out the kind of damages that froze the blood of newspaper editors has been curtailed. Whereas in some of the civil trials that Adler is able to reconstruct, one is torn between sympathy and distaste for the jurors whom he talked to (quite legally) about their deliberations: sympathy for their anxiety at being incapable of grasping abstruse points of commercial law, for example, or at the lack of guidance in trying to put a money value on an Aids sufferer’s suffering; distaste at the spirit of materialism and vengefulness with which they dream up their multi-million-dollar damages. The rule of thumb seems to be: the bigger the corporation, the more noughts you add.
Another difficulty we are largely spared in England and Wales is the hung jury, thanks to the introduction of majority verdicts under Roy Jenkins’s Home Secretaryship. In most states in the US, verdicts still have to be unanimous. This leads to mis-trials, delays, stress for the defendants and costly re-trials – sometimes because just one ‘holdout’ juror, perhaps overcome by moral scruples, has stood out against the rest. In Washington DC and Los Angeles, for example, the hung-jury rate is about 13 per cent of criminal trials.
In New Zealand there have been similar problems. By 1997 the hung-jury ratio had risen above 10 per cent and there were mounting calls to introduce majority verdicts as in Australia and the UK. But Stephen Adler tells me there is no such pressure in the US. The twelve people on a jury are seen as one decision-maker.’
I wonder whether a subconscious reason why the unanimity rule still holds sway may be because of capital punishment, which is on the statute books in thirty-six states. Jurors in a case where a guilty verdict might lead to the electric chair or a lethal injection are closely questioned by the court to ensure that they are ‘death-qualified’, i.e. not opposed in principle to the ultimate penalty. If that sounds grisly to our ears (and also appears to give the jury selection a somewhat retributionist bias), at least all twelve jurors must be of one mind. In most states it is their job not only to reach the verdict but also to decide whether the death penalty should be imposed. So perhaps it would be argued that if a murderer gets the benefit of a unanimous jury, the bank robber and the child molester should have the same protection.
Stephen Adler’s book highlights another bizarre development which again has no direct relevance here but which serves to underline a real merit of the English jury system. The way we select our juries is not completely random, because so many well-qualified people are exempt, can be excused or find it easy to get off. But we no longer have peremptory challenges. Broadly speaking, the jury you get is the jury you are stuck with. In the US, by contrast, the opportunities for jury challenges are not only generous but have become such a key part of the trial process that it can take weeks or even months to find a dozen people who meet with the lawyers’ approval.
On the back of this there has grown up an extraordinarily lucrative business, that of the jury consultants. These are specialists in assessing jury panellists in terms of their likely inclinations to condemn or acquit in any given case. They are retained by lawyers in big cases to help decide how to exercise peremptory challenges. They are aided by pre-trial questionnaires which each panellist must fill in, relating to background, religious beliefs, prejudices etc, and an interview with each potential juror conducted by the judge and counsel, known as a ‘voir dire’. They may even resort to using private investigators, if John Grisham’s chilling portrayal of juror selection in The Runaway Jury is halfway true to life. In 1989, these people earned an estimated two hundred million dollars for their services. The figure must be vastly greater now.
In the old days American lawyers prided themselves on being able to handle this sort of thing on their own. Adler quotes from an article by the famous defence lawyer Clarence Darrow, writing in 1936 in Esquire magazine. His chief targets for a peremptory challenge were Presbyterians (‘cold as the grave’) and Scandinavians (‘almost always sure to convict’). Other attorneys have their own pet theories: Adler mentions one who thinks Irish-Americans are prone to side with the police and that blacks tend to sympathise with the accused. Men are less censorious than women. The old are more understanding than the young. The young are more anti-authoritarian than the old. And so on. There is even a flourishing trade in DIY books on jury selection, which teach the tyro defence lawyer ‘how to assemble your winning jury, step-by-step’. The unsuccessful prosecution lawyer in the O.J. Simpson trial thought she had a particular rapport with middle-aged black women jurors, according to a fascinating article in the New Yorker. It did not help on that occasion.
What a Pandora’s Box is opened here. In a commentary in March 1997 the New Yorker magazine angrily denounced the systematic use of peremptory challenges ‘to distort jury demographies’. In the name of swearing-in an unprejudiced jury, every kind of prejudice is sanctioned: racism, ageism, sexism, anti-intellectualism.
Stephen Adler was alarmed by much of what he discovered in his researches. He suggested the American courts should look to England to redress some of the problems, notably the abuse of peremptory challenges. For a time his prize-winning book sparked some support. There were loud rumblings and enthusiastic conferences following the Menendez and O. J. Simpson trials. But the momentum petered out: the power of the US Trial Bar is simply too great to fight, he told me. When it comes to reforming or even abolishing the peremptory challenge process, too many lawyers have invested too much energy in becoming expert jury selectors – and made too much money in consequence – to abandon the status quo.
What is heartening about this book is what it reveals about the attitude of jurors. Because the author was free to interview them about what went on in the jury room, he was able to follow the verdict-reaching process in great detail and a wide variety of cases, from a double murder in Dallas to the fraud trial of Imelda Marcos in 1990. In some of these cases the jury did its job in model fashion. In others, they were shockingly hampered by complexities which they were incapable of fathoming. But what was common to all of them was the seriousness with which they approached their task. Greater intelligence on the part of some of the jurors, clearer presentation on the part of some of the lawyers, more understanding from some of the judges might have produced ‘better’ verdicts. But they would not have been more honest ones.
I like to think that if the same sort of scrutiny were applied in this country it would, in that respect, lead to a similar conclusion.
Trimming the Lamp
MAJOR ADJUSTMENTS
No one would claim that the jury is a precision instrument for discovering the truth. As the 12th Juror says in Ann Routley’s father’s favourite film, ‘This isn’t an exact science.’ Juries are clumsy, expensive, fallible and slow. But the jury is not only an administrative device. It also has a symbolic and political function. It is Lord Devlin’s ‘lamp that shows that freedom lives’. It is Sir William Blackstone’s ‘sacred bulwark of the nation’. It is de Tocqueville’s ‘peerless teacher of citizenship’. It is Lord Bingham’s ‘safety valve’. It is the rope by which the great hot-air balloon of the law is tethered to terra firma. It is a prodigious breeder of metaphors.
The question is whether the lofty claims made for the jury system as a democratic and historic institution are being undermined by its practical imperfections. Sir Louis Blom-Cooper thinks they are: costs alone will bring it down one day unless it is reformed, he predicts. But no British government would want to be seen cheering on the process too eagerly. Certainly not this one, you would think. Any Prime Minister who refers to The People as often as Tony Blair does ought to approach the jury box on bended knee.
Yet as we have seen, the jury is certainly no
t immune from reform at Labour’s hands. Less than two years after the Tories shied away from the Runciman Report’s controversial proposal to curtail a defendant’s right to opt for trial by jury in ‘either-way’ cases, the new government was blithely following in Michael Howard’s footsteps.
Likewise on the matter of complex fraud trials, I would bet a lunch at El Vino’s against an Old Bailey coffee that the Roskill Committee’s 1986 report will be back on the table before the new millennium is very old. The Solicitor-General, Lord Falconer, has already set the ball rolling in his Denning Lecture in October 1997. The subject was raised again at a well-attended seminar at Gray’s Inn two months later, presided over by the Lord Chief Justice. The Lord Chancellor, Lord Irvine of Lairg, has also signalled his approval for a re-examination of trial by jury in certain kinds of fraud case. And in February 1998 the Home Office joined in what was beginning to look like a concerted effort by issuing a consultation document.
Roskill recommended that in complex fraud trials ‘falling within certain guidelines’ the jury should be replaced by a tribunal, consisting of a judge and two lay members. This was not acted upon by the Conservative government. One counter-argument was that it would be the thin end of the wedge, opening the way for juries to be removed from other complicated cases. Another was that it would be seen as unfair to withdraw a defendant’s right to jury trial for just one kind of criminal offence.
I can only offer a layman’s observations on this subject. One is that as far as I can tell the general public would not give a fig if difficult fraud cases were tried without juries. This is not the kind of crime that concerns them much, with the odd exception such as the Maxwell case. Potential jurors live in terror of being empanelled for a long fraud trial – terror of boredom, first, and inadequacy, second.
Can justice really be done in such circumstances? The answer from Rachel Halliburton, the ex-fraud-trial juror I mentioned earlier, a Cambridge classics graduate in her twenties, is that it can. Her trial at the Old Bailey lasted six months. Her fellow-jurors were unusually young and had no knowledge of high finance. At times they were driven close to screaming point by boredom and frustration. But they fastened on to the human rather than the book-keeping aspects of the trial and, after two days’ deliberation, reached a unanimous guilty verdict. In other words they coped.
However, Rachel Halliburton considered that the way her jury had come together as a team was exceptional: she was not confident that other juries would have been as competent. On reflection, despite her evident pride in her own jury’s achievement, she thought Roskill was right. From her experience, she agreed that a jury on a big fraud trial can be an invitation for the defence to bombard it with paper and bamboozle it with figures until it rolls over on its back and says pax: not guilty. She and her juror friends were sharp enough to realise they were being made the targets of precisely such treatment. The defence counsel ‘meandered’ endlessly, she said. But the fact that they overcame this strategy in their own case does not mean it is not a serious problem in others.
The former chairman of the Criminal Bar Association, Roy Amlot QC, has argued that ‘All complex issues can be made simple … That is the task of the judge and advocate.’ The question is: are these learned worthies always up to that task?
One further point in reconsidering the conduct of fraud trials is that a Roskill-style tribunal is not the only alternative to a jury. The danger with this solution is that if some fat-cat financier were acquitted on a fraud charge by a judge and two City types sitting as lay assessors it could all too easily look like an establishment stitch-up. My own preference would be to retain juries in such cases, for the sake of public confidence, but to allow that the jurors should be specially qualified, either by education or work experience or both.
As for curtailing the right of defendants to opt for trial by jury in ‘either-way’ cases, should the Runciman proposals come to be implemented, I have these self-contradictory observations. First, there seems to be a fairly widespread prejudice that defendants who take such cases to the higher court are often guilty, but banking on a brain-dead jury to let them off. No doubt this is monstrously cynical, but it does happen to be true that nine out of ten of those who elect trial by jury have previous convictions. Second, since defendants refused trial by jury will have the right to appeal against the magistrates’ decision, the savings in time and money may well not be very great. And third, one must never forget Judge Tumim’s observation that ‘a box of chocolates can be a serious matter if you are an elderly clergyman’.
Meantime, there are some much less controversial reforms which might help to trim Lord Devlin’s lamp by enhancing both the fairness and efficiency of the jury system.
MODEST PROPOSALS
Exemptions and excuses
The single most effective way of bolstering the jury’s credibility would be to revise the rules that govern its selection. Before the property qualification for jurors was abolished in 1972 and the lower age limit dropped to 18, juries were widely seen as ‘middle-aged, middle-minded and middle-class’ (Lord Devlin again). Now they are widely seen as being not nearly middling enough. As it happens, that is not borne out by such statistics as there are. But as always in matters of justice, which as we know must be seen to be done, the perception is all-important. And the perception is that juries have been dumbed down to a worrying degree.
The way things look, there is a nod-and-a-wink conspiracy between the courts and the professional classes to allow the best-qualified members of the public to get off doing jury service. That not only seems unfair to those who cannot avoid it. It might also seem unfair to a defendant, who expects to be judged by his peers. It might seem unfair to the police, whose hard work comes to nothing when a jury is outwitted by a clever defence counsel. It might seem equally unfair to a clever defence counsel, if she happens to be someone like Helena Kennedy who also feels unhappy with a ‘lumpen’ jury.
All in all, it would be better if things did not look the way they do.
First, the long list of exemptions from jury service should be reviewed. The reason for excluding clergymen and prison medical officers, to take just two categories, escapes me. But it is the host of people who, whether by self-interested lobbying or establishment diktat, ‘have the right to be excused’ that really needs drastic pruning. MPs, peers, nurses, vets, chemists, soldiers, sailors … These are all people who find it possible to take their summer holidays without putting constituents, patients, pets or the defence of the realm at risk. There is no reason on earth why they could not arrange to do a fortnight’s jury service once in their lifetimes. As it is, the jury system is deprived of their expertise and special knowledge of the world: its representativeness is reduced and its randomness is diminished. That is a shame.
(I think MPs and senior civil servants should serve on juries not once in their lives but once every five years or so. It ought to be a condition of office. It would help them to keep in touch with the world they make laws for and administer. In Democracy in America Alexis de Tocqueville wrote that jury service makes people ‘feel the duties which they are bound to discharge towards society … [and] rubs off that private selfishness which is the rust of society’. Forget the health farm. A stint in the jury box is what our rulers need.)
Almost as irritating as the official excusees are the quantities of people who manage to get off by pleading hardship or a pre-booked holiday. As I have mentioned before, the preponderance of the well-qualified and well-educated among their number is striking. Off they skip, having made their excuses, leaving the rest feeling like mugs, as though their time were considered less valuable than the escapers’. It is not quite the scandal it is in America, where more than half those summoned for jury service either don’t show up at all or plead ‘extreme inconvenience’ to get off. But New York’s clampdown on middle-class jury-dodgers would be a good model for New Labour too.
DC Ian Slade had the right idea here: give people advance notice that th
ey will be summoned for jury service within a certain period, say a year or eighteen months; then let them select the dates that suit them best. Once they were committed to a given fortnight, the penalty for non-attendance would be tough.
The idea that only little people do jury service has got about. It is bad for justice, bad for democracy, and bad for the long-term future of trial by jury. It ought to be changed.
Volunteers
One way to upgrade juries would be to welcome volunteer jurors. Of course, I can see the objections. All kinds of martinets and busybodies would be inclined to put their hands up. But exactly the same objections apply to lay magistrates. A simple screening process could deal with the problem. And a limit of, say, two or three stints could avoid the risk of case-hardening. Meanwhile, there are thousands of people eager and well-qualified to do jury service – particularly among the retired – who never get the chance. It is a great waste of untapped civic energy.
The age limit
I have serious doubts about jurors as young as 18 being allowed to sit on juries. What can they know of the world at that age? Beyond bringing comfort to a youthful defendant there is no virtue in this genuflection towards the young. Being one of twelve on a jury that could decide a man’s future for years to come is a much weightier matter than being one of millions allowed to vote at election time. Twenty-one would be more acceptable. If magistrates must be 27 before they are regarded as eligible, shouldn’t similar albeit less stringent considerations apply to jurors, who generally speaking are trying much more serious cases?
The challenge
