The Juryman's Tale

by Trevor Grove

  But it had less impact on Korkolis than English insect-repellent on a Greek mosquito. He gabbled on undaunted, never using one word where a peroration would do, swinging entertainingly from racy idiomatic English (‘George was in on the plot with us’) to mangled grammar and sublime mispronunciations. ‘Did you ever cross your mind …?’ he would ask the witness insinuatingly, and then go on to question him about ‘weepons’ and ‘sweetcases’.

  We did learn an engaging Greek phrase in the course of it all. This was ‘anthropos das nichtas’ – a man of the night, a night owl. It would help to keep the principal characters in our minds over the forthcoming break, these gambling Greeks who ventured out at midnight and seldom roused themselves before midday.

  Our Christmas party would not have appealed to an anthropos das nichtas. It was held at lunchtime in the pub across the road, which smelt of disinfectant. We had steak sandwiches and lager. Wishing each other ‘Happy Christmas’, ‘Feliz Navidad’ and ‘Buon Natale’ our gang of twelve dispersed into the early winter darkness.

  HISTORY LESSON

  The court would not be sitting again until 6 January. But I found it impossible to put the trial out of my mind. For one thing, it was clearly going to take up a great chunk of the new year, far greater than anyone had anticipated. Korkolis’s line in self-defence was often more entertaining than Mr Gale’s had been. But it was also immeasurably more long-winded and repetitive.

  By now I was so absorbed I didn’t mind. Korkolis himself was a riveting study. He was as bumptious as a cockerel. Yet he had moments of charm – and had become quite skilled at seizing an opportunity for sympathy. When the judge rapped him for not having prepared his material before coming into court, Korkolis responded with scarcely a hint of self-pity, ‘My Lord, it is hard to prepare. You know the conditions.’

  Korkolis was taking the leading defence role in a serious criminal trial with no more than his own sharp wits to aid him. In doing so, it seemed to me, he was calculatingly targeting the twelve members of the jury. He was shrewd enough to realise that, whatever the legal arguments or the weight of the evidence, it was not the judge or the barristers or the police he had to convince: it was us. He must have known he had won some points by sacking his counsel and stepping into the advocate’s role himself. He had seen our lips curling. He was clever enough to understand that the British sense of fair play and love of the underdog could be recruited to his side. He would play the victim; he would try to align us with himself against the playboys of the West End world like George Fraghistas and his family.

  He had also probably worked out by now, with a little help from prison friends, that even if English juries could not be wooed they could sometimes be baffled and bored into acquitting.

  I thought about him with some sympathy over the holiday while I was stuffing the turkey and hoovering needles under the Christmas tree. I pictured him in his cell, stooped over law books written in a language which makes even native speakers stumble, summoning his solicitor for urgent conferences, rehearsing his lines.

  I began doing a bit of homework myself,, dipping into what books I could find about the jury system. They were few but illuminating. One of them, Taking Liberties: The Criminal Jury in the 1990s (Weidenfeld & Nicolson, 1990) by Sean Enright and James Morton, helped me to put the jury into an historical context. Geoffrey Robertson’s admirable Freedom, the Individual and the Law, which I caught up with in its seventh edition (Penguin, 1993), provided a contemporary gloss. Then there was W. R. Cornish’s The Jury (Allen Lane, 1968) … But stop. I had no plans to become an academic expert. I merely wanted a bit of background.

  If Korkolis was gambling on an English jury’s being stroppy, anti-establishment and resentful of the rich, it was not altogether a bad bet. Native stupidity might shorten the odds on an acquittal even further. Our jury system owes its fame – and notoriety – to outbreaks of wayward behaviour, even though the truth is that it has been a prop of authority far more consistently than it has been a check on it. Some would say that this is the great charm of the British jury. It may tog itself out like a mini rent-a-mob in blue jeans and Nike trainers. Its battle honours may include glorious instances of giving two fingers to the authorities of the day. But it remains on the whole a pretty conservative institution.

  Trial by jury has existed in these islands for more than seven hundred years in one form or another. Naturally, it has evolved a great deal over that period. Back in the early part of the thirteenth century a jury might number anything between two and four dozen members. Picture the scene. They would all be men, generally of some rank and substance: a congregation of the sort of neighbourhood worthies who today would probably be JPs, Rotarians or members of the local Conservative Association.

  In complete contrast to our present-day conventions, they would be chosen precisely because of their knowledge of the defendant, or at any rate his background, and their familiarity with the circumstances in which the alleged offence occurred. Nowadays, of course, total ignorance of all such matters is a juror’s prime qualification, impartiality having become the jewel in justice’s crown (and a great obstacle to truth-finding, the police might add, sotto voce).

  But seven centuries ago there were worse things to fear even than a biased jury. Trial by ordeal effectively came to an end in 1215, at the instigation of the Vatican. But for centuries it had been the routine way of deciding guilt and innocence. Ordeal by battle, ordeal by fire and ordeal by water must have seemed almost as barbaric then as they do now, even if the innocent had greater faith in the Almighty to intervene on their behalf.

  The ordeals came in ingenious variety. Pulling an object out of a vat of boiling water with one’s hand or walking several paces holding a red-hot iron were two of them. The verdict depended on how swiftly the burnt hand healed. In the ordeal by water, the alleged felon was tied up and tossed into a pond. Perversely, floating on the surface was considered unnatural, and therefore proof of guilt. If you sank like a Mafia corpse you were acquitted – but risked drowning anyway. A less agonising ordeal required the eating of a bun or ‘cursed morsel’ in which a feather was secreted. If the result was a coughing fit, it was thumbs down. If you munched away contentedly and could get out the words, ‘This bun or cursed morsel is delicious, as light as a feather’, you were in the clear.

  Even then, there were juries. They were employed to decide whether an accused person had a case to answer and, if so, to select which form of ordeal would be appropriate. After 1215, they began to act not only in this role as a ‘petty jury’ or ‘jury of presentment’ but to try the cases, too. By 1220 trial by jury was established as the normal procedure.

  The experience could be tough for these early jurymen. Once a petty jury had accepted that the defendant had a case to answer, woe betide the jurors who then decided to acquit. They would usually be fined, on the assumption that it was a perverse verdict – an assumption that was to hold good for hundreds of years to come. No doubt there are judges who wish it still held good today.

  In the 1360s it was decided that unanimous verdicts would be a good idea and that huge unwieldy juries were out of date. Enter the twelve good men and true who have been with us ever since, unchanged but for allowing women to join their number in 1919 and some subsequent adjustments to age and status. Why twelve? No one really knows. But there were twelve apostles and twelve tribes of Israel and twelve pennies to the shilling. Maybe, as Lord Devlin has suggested, the number chosen was simply the expression of ‘an early English abhorrence of the decimal system’.

  TRIALS AND TRIBULATIONS

  If the composition of juries changed in the fourteenth century, conditions in those far-off days did not, nor would they for centuries to come. Because jurors tended to be local men, known to the defendant, the risk of jury-tampering was great. To counteract this, juries on serious cases, once sworn, were not allowed to separate until the end of the trial. For the same reason it was considered proper that juries should be deprived of food, water
and heat during their deliberations. This was to prevent one side or the other from getting to the jury and corrupting its members with tasty titbits, strong drink, or out-and-out bribes. On a cold night even a log for the fire would presumably have been considered an inducement. If the effect of these privations was also to speed up the verdict, so much the better. ‘The hungry judges soon the sentence sign,’ wrote Alexander Pope in The Rape of the Lock. ‘And wretches hang that jurymen may dine.’

  The tale is told of how once, during a lengthy jury deliberation, the usher asked the judge if he could give one of the jurymen a glass of water. ‘Well,’ said Mr Justice Maule, ‘it is not meat, and J should not call it drink; yes, you may.’

  In his jolly book, Great Legal Disasters (Arthur Barker, 1983), former judge Sir Stephen Tumim recounts the story of the acquittal of the Seven Bishops in 1688. Their petition to James II to stay within the Church of England had led to their being charged with seditious libel. The jury was locked up for the night with nothing to eat or drink and without even a candle. When bowls of water were sent in for them to freshen up at four in the morning, they drank the lot.

  Although this was what we would now recognise as a vetted jury, thought to be thoroughly pro-King, eleven of its members had decided by dawn in favour of not guilty. The exception was a man called Michael Arnold. He was the royal brewer. Poor Mr Arnold. ‘Whatever I do I am sure to be half-ruined,’ he reflected. ‘If I say not guilty I shall brew no more for the King; and if I say guilty I shall brew no more for anybody else.’ He hung out for guilty. The others, led by a landowner called Thomas Austin, wanted to change his mind, since there were no majority verdicts in those days. Mr Arnold said he was too hungry to argue. Whereupon Mr Austin made the following threat: ‘If you come to that, look at me,’ he said. ‘I am the largest and strongest of the twelve; and before I find such a petition as this to be a libel, here I will stay until I am no bigger than a tobacco pipe.’

  The brewer, even more appalled at the prospect of communal starvation than of losing his royal client, gave in. The bishops were freed. The jury chalked up one of its celebrated triumphs over the State. And not for the last time, the wisdom of treating jurors like prisoners was shown to be questionable as well as cruel. In this case it had been both ineffectual and self-defeating so far as the Crown was concerned. Yet well into the nineteenth century verdicts were still being overturned if it was discovered that victuals had been smuggled into the jury room. It was not until 1870 that deliberating jurors were allowed a fire in the grate and food in their bellies – and even then (as now) only so long as it was ‘procured at their own expense’.

  For much of its history there was another disagreeable reason for wishing to escape a jury summons. This was the State’s tendency to believe that (a) anyone committed for trial was by definition guilty and (b) the jury’s task was not to remain impartial or reach its own opinions but to follow the judge’s instructions to the letter, especially when invited to return a guilty verdict. Failure to act accordingly could and did lead to fines, imprisonment or being ‘accounted infamous’. Under the Tudors, the Court of Star Chamber was notoriously swift to punish juries which returned verdicts contrary to the weight of evidence, i.e. in defiance of the Crown.

  Naturally, most juries toed the line. But some did not. And it is to these stubborn men that the jury system owes much of the sanctity and sentiment attached to it today. There was the case of John Lilburne, the Leveller, in 1653. He was already heading for the history books thanks to a heresy case against him in 1637. He had been pilloried for refusing to answer questions on oath. He appealed to the House of Lords which agreed that it was ‘contrary to the laws of nature and the kingdom for any man to be his own accuser’ – thereby helping to establish the right to silence.

  Sixteen years later Lilburne faced a death sentence at the Old Bailey for flouting an exile order decreed by Parliament. He appealed to the jury to ignore the judge and to regard themselves as ‘equal judges of law and fact’. The jury did just that, acquitted him, and consequently found themselves in very hot water. They were summoned to account for their actions before Cromwell’s Council of State. Five of them adopted the explanation offered by their foreman, Thomas Greene, that he ‘did discharge his conscience’. Surprisingly, the jurors were not punished, perhaps because Lilburne was a popular figure, perhaps because the regime did not wish to appear as high-handed as the lately deposed monarchy. The long-term significance of the case, however, was that those references to conscience and to a jury’s being equal judges of fact and law struck a chord which has never since been silenced.

  Seventeen years later, in 1670, came an even greater victory for the English jury in its slow march towards independence. Law students learn that it is one of the key events in establishing the jury’s right to follow its own conscience, even to the extent of disregarding the letter of the law and the directions of the judge.

  This is always said to be the case that ignited ‘the lamp which shows that freedom lives’. It is known as Bushell’s Case and there is a plaque in the Old Bailey whose beautiful curly script commemorates ‘the courage and endurance’ of those involved. It concerned two Quakers, William Mead and William Penn (as in Pennsylvania). In 1670 they were charged with conducting a seditious assembly. They had been preaching in Gracechurch Street, despite laws aimed at suppressing Nonconformism. The jury refused to convict. The judge angrily locked them up for two nights ‘without meat, drink, fire and tobacco’ – and, heaping indignity upon discomfort, no chamber pot either.

  Undaunted, they stuck to their not guilty verdict. William Penn shouted his encouragement to the jurors: ‘You are Englishmen. Mind your privilege. Give not away your right.’ ‘Nor will we ever do it,’ cried their foreman, Edward Bushell.

  The Recorder of London was outraged: ‘I am sorry, gentlemen, you have followed your own judgements and opinions, rather than the good and wholesome advice which was given you. God keep my life out of your hands, but for this the court fines you 40 marks a man; and imprisonment till paid.’

  The entire jury was banged up in Newgate, just around the corner. Four of them, led by Bushell, refused to pay and spent months in prison. They appealed against their incarceration by a writ of habeas corpus. The Lord Chief Justice, Sir Robert Vaughan, decided they should be released, asserting ‘the right of juries to give their verdict by their conscience’ or, in the words of the Old Bailey plaque, ‘according to their convictions’, irrespective of the judge’s directions. In Freedom, the Individual and the Law Geoffrey Robertson says ringingly: ‘Bushell’s Case is the foundation of the constitutional independence of the jury: it can do justice, whatever the law may be.’

  In other words, juries can take the law into their own hands. It is this right that underpins the belief that the jury system is our shield against official high-handedness. As the present Lord Chief Justice, Lord Bingham, has put it, the jury is ‘one of the great safety valves that prevents the State from behaving in an oppressive way’. In the eighteenth and nineteenth centuries, it was this right that helped juries save many petty criminals from the gallows. It was invoked to nullify unpopular laws in colonial America, where the jury is even more highly venerated today than it is in this country: there is a group in the US called the Fully Informed Jury Association one of whose principal goals is to ensure jurors know of this right to disregard the law and follow their consciences.

  More recently, a 1985 Old Bailey jury refused to convict a senior civil servant of breaching Section 2 of the Official Secrets Act, which he plainly had, despite unambiguous directions from the judge. Clive Ponting had passed documents to a Labour MP showing that Margaret Thatcher’s government had misled Parliament about the circumstances of the sinking of an Argentine warship, the General Belgrano, during the Falklands War. The acquittal was widely celebrated, says Geoffrey Robertson, for upholding the traditions of ‘the gang of twelve’.

  Six years later, a jury acquitted Michael Randle and Patrick
Pottle of organising the escape from prison of the MI6 traitor George Blake in 1966 – even though they had written a book confessing all. Presumably the jury shared the authors’ indignation at the length of Blake’s forty-two-year sentence, and disapproved of the quarter-of-a-century delay in prosecuting.

  (In September 1999 the jury in the trial of the Earl of Hardwicke and a friend, who had been entrapped by the News of the World into arranging a cocaine deal, reluctantly reached a guilty verdict, but made their feelings known in a note to the judge: ‘Had we been allowed to take the extreme provocation into account we would undoubtedly have reached a different verdict.’ The judge quite properly took on board the jury’s concerns and freed the two men, giving them suspended sentences.)

  I don’t suppose Constantinos Korkolis was doing the same sort of background reading as I was. But if he had, there it was in black and white: the jury was all-powerful. According to an Oxford University Penal Research Unit study in 1974, some 14 per cent of acquittals can be described as ‘sympathy verdicts’ in which, as Geoffrey Robertson puts it, ‘the jury strives to find a reasonable doubt because it believes, with good cause, that the defendant has been the victim of oppressive police behaviour or has in any event suffered enough’.

  NEW YEAR, NEW WITNESSES

  6 January 1997. The jurors were happy to be back in court. So was Mr Korkolis. He resumed his new role as chief defence interrogator with as much brio as if he’d been off for a bracing Christmas skiing holiday, though he looked pastier than ever.

  Detective Chief Inspector Laurie Vanner was in the witness box. He was the man in charge of the Scotland Yard operation which had put Korkolis in the dock. He was evidently a policeman of great experience and authority, a persuasive witness for the prosecution. Then came the cross-examination. This was the first witness Korkolis would have to himself from start to finish and the first of a great many police witnesses we were to hear from. Not many accused men get the chance to twist the long arm of the law themselves, or would want it. Korkolis made the most of it.