The Juryman's Tale

by Trevor Grove

  The abolition of the peremptory challenge in 1988 was arguably regrettable. The upside for the juror is that he or she won’t be turned away for having a red face or wearing pearls, as might once have happened and sometimes did. The downside for the accused is obviously more serious. The defendant may now find himself being tried by a jury containing no one he recognises as a peer and maybe several people whose appearance he finds objectionable. Race, sex, class and age all come into this.

  In 1989 the Court of Appeal decided that judges had no power to order a new jury panel if they thought it would be fairer to have a different racial or sexual balance. In Freedom, the Individual and the Law, Geoffrey Robertson argues that it ‘is plainly necessary to give judges by statute this very power’. The Runciman Commission made the same recommendation, though only for cases with a ‘racial dimension’.

  I don’t know. We should be very careful. This way all sorts of madnesses lie, as America knows better than we do: there they are well aware of the danger of challenges that look as though they are made on a purely racial basis, which of course they often are. In any case, black people are not the only minorities. Should homosexual defendants be entitled to some token gays in the jury box? Should a Moonie be allowed some fellow Moonies? Could an Old Harrovian insist on there being at least one ex-public schoolboy among his judges? Just over a century ago, Constantinos Korkolis would have been entitled to a jury ‘de medietate linguae’, which could have included a few fellow-countrymen. Why not now?

  This matter is bound to resurface sooner or later, the way our grievance-driven, discrimination-conscious society is going. One way to deal with it would be simply to restore the right to three (or maybe fewer) peremptory challenges. That would be a sop to fairness, though not a guarantee of it. Another, as we have seen, would be to allow judges to pressurise the prosecution into exercising its stand-by right in instances where the composition of the jury seemed inappropriate. That would have the merit of being a good old-fashioned compromise. It would require no legislation, merely a directive from the Lord Chief Justice. The problem would be what to do if counsel for the prosecution refused to play ball … Discuss.

  Juror education

  Most courts make some sort of attempt at letting jurors know what they are in for and how to go about it. Even so, nothing can quite prepare them for the emotional impact of sitting through a trial and then having to reach a verdict which might mean a defendant’s ending up in prison. One proposal put forward by Sean Enright and James Morton in Taking Liberties would be to ensure that potential jurors watch part or all of a trial before they sit for the first time. This would not only settle their nerves. It would also, the authors suggest, help to deal with the ‘new juror’ syndrome: ‘Simply stated, this means that jurors on their first trial (for reasons that are easy to understand) are notoriously prone to acquit.’

  This seems to me an excellent notion. I also agree with them that ‘better education of our children about the responsibility of citizenship (including jury service) might have a beneficial effect’.

  The Thirteenth Juror

  As Helena Kennedy explained to me, this is a very straightforward, unobjectionable device, used widely in the United States. It amounts to this: that for long cases one or more extra jurors should be sworn in, who would hear the trial alongside the dozen in the jury box. In the event of one of them having to drop out, a replacement juror would drop in and the trial would proceed smoothly. This way the risk of the jury’s shrinking below the majority-verdict quorum would be avoided and there would be no costly re-trial.

  In Russia, the jury system is being enthusiastically revived on largely English lines (thanks to the efforts of proselytisers such as Robin Grey QC, chairman of the international committee of the Criminal Bar Association, who has made numerous trips there). However, the Russians do like the American idea of replacement jurors, and mean to adopt it.

  The invisible jury

  If one were designing a courtroom today, one would not site the jury box in full view of the public gallery. The authorities do their best to stage terrorist cases and organised crime trials in suitable venues, but it is not always possible. Jurors should be made to feel that their security is a top priority. They are treated as cannon fodder anyway. To put them literally in danger is unacceptable if enough courts could be re-designed so as to minimise the risk.

  Note-taking

  Despite the Old Bailey’s introductory video and helpful pamphlets, jurors are often uncertain about note-taking. In the US nearly 40 per cent of judges are against the idea. They say jurors writing in longhand fall behind. But even that is better than having to rely solely on one’s memory. In a reader’s letter in the Independent in May 1997 an ex-juror claimed that, as the only one taking notes on his jury, the record he had kept had been vital to their reaching a sensible verdict.

  Judges should spend a moment at the beginning of a trial urging the jury to jot down at least a word or two every few minutes, without frightening them into making them feel they have to. The risk of a note-taker getting something wrong and its then being treated as gospel simply because it has been written down would be diminished if the other jurors were taking notes too.

  Questions

  Judges should make quite clear the procedure for the jury to send questions up to the bench. Some ex-jurors have told me they were unaware they could even do this. (In the US, a majority of judges are against juries asking any questions at all. Some in this country feel the same.) In our own case, it took the jury quite a while to get up the courage to put a query. After that, individual jurors became so keen to catch the usher’s eye with their own piercingly perceptive questions that proceedings kept grinding to a halt. Had we been allowed to carry on we might have ended up, like some medieval juries, trying to run the trial ourselves. As it was, the judge reined us in by saying he would only take questions if they were put by the jury as a whole.

  Instructions

  By tradition, the judge instructs the jury on the law as it relates to a case at the very end of the trial. It had not occurred to me that there was anything odd about this until I read an American judge’s comment that this was like ‘telling jurors to watch a baseball game and decide who won without telling them what the rules are until the end of the game’. Another senior federal judge, writing in the American Bar Association Journal in 1960, had this to say:

  What manner of mind can go back over a stream of conflicting statements of alleged facts, recall the intonations, the demeanour, or even the existence of the witnesses, and retrospectively fit all these recollections into a pattern of evaluation and judgement given him for the first time after the events?

  Stephen Adler commends the approach of some judges who give their juries preliminary instructions on the law at the beginning of a case as well as a fuller version at the end. This sounds like good sense, though it would have to be managed so as not to increase the opportunities for an appeal on grounds of misdirection.

  What makes even better sense to me is the suggestion from my fellow juror Sophie that defence barristers should also do a bit of preliminary instructing before introducing their examinations-in-chief of a witness – maybe even their cross-examinations, too. That way jurors would have a better idea what they were supposed to be listening out for and counsel would find it harder to go on exasperating ‘fishing expeditions’.

  Language

  The language of the courtroom veers between the obscure when lawyers address each other, to the commonplace when they address the jury. Apart from the occasional sense that one is being talked down to, I don’t think jurors have much to complain about. However, there are two crucial bits of legal terminology that recur in both scenarios. They are ‘the burden of proof and ‘beyond reasonable doubt’. Judges and barristers address these words to juries as though their meaning were self-evident. I am not certain it is.

  Does ‘beyond reasonable doubt’ mean ‘beyond a shadow of a doubt’ or is it closer to ‘almo
st certainly’? How reasonable does reasonable have to be? As that contemporary philosopher Eric Cantona might put it, if a drop of black paint lands on a white wall, is it still a white wall?

  If lawyers think this is quibbling, consider the standard definition of ‘reasonable doubt’ given to juries in the State of California:

  It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

  The constitutionality of this impenetrable definition was upheld by the US Supreme Court in 1994.

  Mr Justice Popplewell agreed that this was a difficulty. He himself used to explain to juries that what was meant was ‘a doubt for which you can give a reason’, but much preferred present practice which is for judges not to use the phrase at all. Instead they say, ‘You must be satisfied so that you are sure.’ Defence lawyers, however, still adhere to reasonable doubt – which should tell us something about which side it might be thought to favour.

  Perhaps judges could explain such terms more fully to their juries. Or a little glossary could be included in the new juror’s introductory bumf. ‘Admissible evidence’ might be added to the list, along with some other courtroom favourites such as ‘infer’, ‘indictment’, ‘hearsay’, ‘deposition’ – although the line would have to be drawn somewhere: I was told of a jury which had sent a note up to the judge asking him for a definition of ‘common sense’.

  Research

  The Runciman Commission recommended that Section 8 of the Contempt of Court Act 1981 should be amended ‘so that informed debate can take place rather than an argument based only on surmise and anecdote’. Nothing has so far happened, save for a nod and a wink from the Solicitor-General in October 1997 that the Government might consider reviewing Section 8. The purpose of such a relaxation would be to collect material ‘which may be of assistance in determining whether there are certain trials which are wholly inappropriate for juries’. (It was clear he had complicated fraud cases in mind.) It was followed by similar hints from the Lord Chancellor and the Lord Chief Justice.

  I am in two minds about all this. My journalistic instincts are on the side of inquisitiveness. I sympathise with Geoffrey Robertson’s view that the present restrictions pose a ‘formidable obstacle to any rational understanding of the corner-stone of the criminal justice system’. On the other hand I would be nervous that too close a scrutiny would show up merely the flaws in the institution while doing nothing to explain its strengths.

  We would discover that the ‘wrong’ people go about reaching their verdicts in the ‘wrong’ way for the ‘wrong’ reasons and forget that by any measure they still mostly come to the ‘right’ decisions.

  All the same I do not like to think that the reason juries are shrouded in secrecy is because there is so much to hide. There ought to be a way for academic researchers to open the jury-room door a crack without its occupants rushing past them on to the courthouse steps to sell their stories to the Sunday papers. There must be scope for research that guarded anonymity, did not name cases and stuck to agreed guidelines. But it would have to be conducted with extreme care. As A.P. Herbert wrote: ‘The Common Law of England has been laboriously built about a mythical figure – the figure of “The Reasonable Man”.’

  Faith in that figure is what keeps the jury system going.

  Jury Service: A Survival Guide

  The summons

  Sod’s Law dictates that if you are one of those people who is longing to do jury service, you will never get a summons. If you belong to the other half and fear the buff envelope because you are too busy, too timid or too grand to spend a fortnight rubbing up against real life, the chances are you will get one.

  When it arrives, my advice is: don’t panic. You may be mad or on probation, in which case you are disqualified. Or you may fall into one of those categories, such as midwives and MPs, where you can ask to be excused from jury service. If the former, too bad. If the latter, think twice before exercising your right to be let off. Ask yourself whether that is an honourable thing to do – especially if you are one of those who thinks juries these days are dominated by anti-social morons.

  If you are at least 18 years old, under 70 and belong to none of these categories you will have to turn up at the appointed court at the appointed time (though the over-65s can ask to be excused). You may still get a deferral if you can give a good reason, but I am not encouraging you to do so. If you are a good citizen you should do jury service anyway. If you are not it may help turn you into one.

  The first day

  If you are determined to duck out, there is usually an early opportunity to approach the jury bailiff and make your excuses. If you stay put, then different courts have different arrangements, but there will generally be some form of instruction as to your jury duties and how to go about them.

  For many jurors, sitting around doing nothing dominates their fortnight’s jury service. This is highly regrettable but should be approached in a positive spirit. Readers will find it bliss, provided they come well-equipped with a good big book. Card-players, knitters, crossword-puzzlers and Scrabblers should likewise kit themselves out as though for a summer holiday in Wales.

  Once you have sampled the canteen you can decide whether you need to bring in your own coffee and sandwiches thenceforward. Weigh your pockets down with chewing gum, cough sweets, cigarettes and aspirin. You may not need all of these things yourself but they are a good way of making friends and cementing jury solidarity. A sewing kit, a calculator and some blank birthday cards can also come in handy.

  Eventually you will be called, along with fifteen or so others, and led into a courtroom by an usher. The clerk of the court will then shuffle some cards and read out the names on them one by one until twelve people have taken their places in the jury box. Occasionally this process may be disrupted. For example, if it is going to be a long case, the judge may give potential jurors an extra chance to excuse themselves: they will have to approach the bench and explain why. In some cases where there are to be a lot of documents, jurors with reading difficulties will be asked to withdraw. There are other special instances in which jurors with particular connections – say to Eire or Northern Ireland in the case of terrorist trials – may have the option to step down. When this happens, the next name on the cards is read out until the jury box is full.

  The jury must now be sworn. This is straightforward if you are happy to take your oath on the Testament. But it is sometimes not pointed out to jurors that not only may they swear on another holy book such as the Koran; they may also simply affirm. If that is what you want to do, just tell the usher.

  The courtroom

  The courts I have been in, apart from Number I Court at the Old Bailey, have seemed much smaller than they look on television. The jury is only feet away from some of the principal players, which can be unnerving.

  Courts have different layouts, but it is usually obvious which the bench is and which the dock. In front of the judge sits the clerk of the court. Close by will be the court shorthand-taker and the usher.

  The barristers are in the front row of the stalls, so to speak, facing the bench. In a serious case there will usually be two barristers for the Crown – a Queen’s Counsel, who is very experienced and very expensive, and a junior barrister. The same kind of Batman and Robin set-up will apply to each defendant. In a more modest case, one barrister each will do. But in a big trial with several people in the dock, there will be enough wig-hair in court to stuff a double mattress.

  The men and women behind the barristers, not wearing gowns and wigs, are the solicitors for the defendants and for the Crown Prosecution Service. Solicitors do not normally speak in court. Their job is to take instructions from th
eir clients, brief the barristers and do the day-to-day work involved in preparing the case.

  In the dock will be the defendant and a prison officer. If he has two prison officers with him it is a safe deduction that he is regarded as a security risk – though of course whether he is or not is really the jury’s job to decide.

  Elsewhere in the courtroom there will be the policeman in charge of the case, possibly with an exhibits officer by his side. And if it is an important trial, the press will be clustered together with their pens poised and notebooks open.

  Finally there is the public gallery, whose comings and goings can sometimes offer richer entertainment than what is going on in the well of the court. It takes a typical tourist couple five minutes to settle in their places and fold their anoraks, another ten to realise they haven’t the faintest notion what is going on and a further quarter of an hour to get up the courage to creep out, looking as guilty as if they were walking out of a first night at the National Theatre.

  Rather more alarming is the sight of the same person in the gallery day after day, staring down unsmilingly and fixing the jury with a glare from time to time. Perhaps he is the defendant’s cousin.

  The trial

  The trial is now ready to begin. Do not be concerned if you are not present to hear the defendant plead guilty or not guilty to the indictment. That often happens in the jury’s absence. What you can be sure of is that the person or persons in the dock is/are pleading not guilty to the charges that the clerk of the court now reads out. Otherwise there would be no need for you to be there.