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Using cases like the Louise Woodward trial as an excuse to undermine the jury system would lead to the biggest injustice of all, suggests John Fitzpatrick

Power to the jury

The jury got it wrong in acquitting OJ Simpson and wrong in convicting Louise Woodward of murder. Most people seem to think that is obvious. Some do not. Good. Everybody is entitled to hold and express such views, and it is very healthy that criminal trials are subject to exacting public scrutiny. Even better when it is informed by the televising of the trials themselves.

We should sit up however when people call for changes which, whatever their intent, will make it easier to convict defendants. Many people are now using these American cases as examples to justify nobbling the jury for good. Loss of faith in the jury is particularly worrying, not only in the context of the criminal trial, but also because it signifies a loss of faith in ourselves.

It is not the formal objective of a criminal trial in this country to establish the truth of what happened in a particular situation. That might seem shocking. If a trial is not about establishing the truth, what is it about? The formal purpose of a trial is to establish whether or not the prosecution can, while sticking to set rules, satisfy certain tests in order to secure the conviction of a person charged with a crime. The question is 'guilty' or 'not guilty', not 'guilty' or 'innocent'. The meaning, strictly, is guilty or may be innocent.

The purpose of these rules and tests is to ensure that the trial remains fair to the accused. It is also believed that they allow the best approximation of the truth, often a tricky little concept, to emerge. Given the consequences for the defendant of conviction, and given the profound imbalance of power as between the individual and the state, these procedures are vital. They exist not just to protect any particular defendant, but to protect every individual in society. Of course every individual also deserves protection from crime, but the idea that this will be achieved by making it easier to lock up every person the police arrest is fallacious at every level.

Perverse verdicts?

One of the bastions of current fairness is the jury. Why? First, simply because of the numbers. Twelve (or in majority verdicts, 10) heads are better than the one, two or three heads of the professionals who would judge in their place. How much safer for the defendant that a large group of people have to be satisfied of their guilt. One person could easily have a bad hair day, or, heaven forbid, even nod off.

Second, because the jury is not case-hardened, has not sat in court for day after day, week after week, dealing with more criminals in a year than the rest of us meet in our lifetimes. The jury comes fresh from everyday life. Jurors bring their experience and their common sense but not a jaundiced view of humanity.

Third, the jury is truly independent. Jurors are not employed by the state, they are not part of the very institution which is conducting the trial. They are not subject to the peer pressures of professional lawyers and their career structures. The jurors appear but once or twice on this stage and can act without fear or favour with respect to the imperatives of the system itself.

The jury is important for other reasons too. Justice is seen to be done by the people themselves, not by an elite set of professionals. It is also the one place in the criminal justice system, in fact in public life, where people can themselves make very important decisions.

Jurors can deliver a verdict according to their consciences, whatever the law says, and cannot be sued or prosecuted for doing so. The civil servant Clive Ponting patently breached the Official Secrets Act to reveal that parliament had been misled about the sinking of the Belgrano in the Falklands War but the jury refused to convict. When the government prosecuted the two men who sprung the spy George Blake from prison, they admitted it freely but argued that the prosecution, over 20 years later, was an act of spite by a state which had known all along, but was embarrassed when they wrote a book about it. The higher judges allowed the case to proceed, but the jury acquitted the men.

It is said that this power is an affront to the rule of law which provides that people be treated equally and consistently, and to the democratic principle which provides that it is up to parliament to decide what the law is, and that jurors should stick to applying it. Not a bit of it. Only a pitiably formal understanding of the rule of law would require the literal application of fixed rules in all circumstances. Neither does democratic principle require that law can only be challenged, especially with respect to individual cases, in parliament. It is of constitutional importance that jurors are able to refuse blatant injustice or blatant abuse of power by the state.

You may disagree with a particular decision, but I think we can trust people, trust each other, to understand that this power is for exceptional cases and that normally the jury's role is to apply the law as directed by the judge. Lawyers in particular incline to the view that ordinary people are too stupid to understand and operate such ideas. In practice 'perverse' verdicts of this kind seem quite rare. The term is more commonly used to refer to cases where the jury, purporting to follow the directions of the judge, takes a different view from the lawyers or other observers on the facts.

The jury itself and access to it have been under siege for years. In 1988 there was a reclassification of several offences, so that charges of common assault, taking a vehicle without consent and certain criminal damage charges are now tried by magistrates. There have been several attempts to do the same for 'small thefts'. The Crown Prosecution Service now simply wants to remove the right of the defendant to elect for jury trial and to give the final choice to the courts. No doubt the jury-less Diplock Courts in Northern Ireland for 'terrorist' offences will continue to be pushed for use in other cases. Despite a lack of convincing evidence it is repeatedly said that juries are out of their depth in complex fraud trials.

Too stupid?

The composition of the jury is also under attack. Guidelines were published in 1978 and amended in 1986, disclosing the hitherto secret practice by which the Crown, in cases concerning terrorist or national security matters, vets potential jurors using state files and records. It can then exclude those who, in the breathtaking formulation, have 'political beliefs which are so biased that they might interfere with the juror's fair assessment of the facts'. The vetting procedure, which was upheld by the judges, is an insult to us all.

The Royal Commission of Criminal Justice proposed in 1993 that in certain offences with a racial dimension there should be a quota of jurors from the same ethnic group as the defendant. This proposal is based upon three very dangerous ideas. First, that people are incapable of putting aside their prejudices and acting responsibly in their role as jurors. Second, that our peers are not anybody and everybody in our society, but just those with whom we share specific characteristics and experiences. A truly divisive concept. Third, that it is acceptable to address the divisions and inequalities in society by institutionalising them and by adjusting the formal equality of the law to match them. The fact that our law accepts in principle that people should be treated equally is a potent weapon in our struggle to make equal treatment real in society, and we would be ill-advised to blunt it.

The quotas proposal illustrates very well the growing approach to the jury today. You just can't trust them. They, we, are just too stupid to understand the technical and mysterious matters of the law - it is best left to the experts. They, we, are too prejudiced because of our politics, because of our education (or lack of it), because of our race, because we don't like foreign childminders, to sit down and make a fair assessment of the facts put before us - it is best left to our moral betters.

There may or may not be lessons from the Woodward trial for how the system should develop. I certainly saw nothing to suggest that the jury system should be undermined even further. I have every confidence in the nous of ordinary people, and in their ability to see through the wiles of lawyers and witnesses alike, and when required to see through the law as well.

Consider the staggering list of miscarriages of justice that have emerged in recent years in this country. With the benefit of hindsight who should we blame? The answer is incompetent (or worse) forensic scientists; policemen who forced confessions out of prisoners, forged documents and lied; prosecuting officials and lawyers who withheld evidence; and judges who again and again failed to do the right thing. Overwhelmingly, it was not the fault of 12 angry men and women.

John Fitzpatrick is director of the Kent Law Clinic and lecturer in law at the University of Kent

Reproduced from LM issue 106, December 1997/January 1998



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