by Trevor Grove
The frequent sight of armed policemen at the Old Bailey had set me wondering about juries hearing terrorism cases on the mainland. Surely it must be very alarming to be a juror in those circumstances?
She agreed that there was a scary element for the jury in such trials. ‘They are given all sorts of special directions about phone calls, noticing anything untoward or being approached by a member of the public. They are told to use a back door into the Bailey. It means, I always feel, they are all too conscious that the State feels these people who are on trial are dangerous, whereas that is the issue that is in fact being tried. It all adds to their tension.’ But she knew of no case where a juror had cried off out of fear.
At the Old Bailey terrorism trials are generally held in Court 2, where the jury cannot be seen from the public gallery. In other courts ‘you’re terribly conscious of being looked at all the time’. Jury panels for terrorist trials are usually questioned by the judge more closely than is normal so that people with Irish connections can ask to be – and often are – let off. All the same, it seemed to me admirable that so many ordinary men and women are prepared to undertake the task so unflinchingly.
Helena Kennedy had a different worry. ‘The temptation could be – I have no proof of it – that there would be anxieties about letting such defendants go.’ On the contrary, I thought: there must be a very strong temptation for nervous jurors to play safe and let them off. (Bruce Houlder QC, who is the Bar Council’s vice-chairman of public affairs, told me, ‘Even in IRA cases my impression is that juries are determined not to be intimidated. The more the threat, the more likely an English jury is to get cussed and be affected against the defendant.’)
In the 1970s, when Helena Kennedy came down from Scotland to practise at the English bar, each counsel could exercise seven peremptory challenges, which meant that up to that number of potential jurors could be rejected without a reason being given. That was later reduced to three. Now there are none. It is very nearly a pure lottery, in striking contrast to the massively time-consuming and expensive process of jury selection in the United States. But many lawyers here would like to see the return of their three peremptory challenges. Helena Kennedy does not seem to feel as strongly as others on this issue. She recalled that they often used to drop jurors and get worse in their place. Once she had been very worried about a man wearing a shirt with epaulettes. Was he a security guard, or a member of a fascist group? Eventually she had learnt that he was a fireman – who went on to become an excellent jury foreman.
All the same, she said, ‘I am very unhappy at the idea that randomness might throw up an all-white jury in the case of a black man being tried. The black community could feel very aggrieved. Age might be an issue, too. In a case about drugs, for example. What if you get a jury of people like my mother? She’s terrified of drugs. And I’d be very unhappy if a mother was on trial for killing a baby, for example, shaking her baby to death, if the jury was too young. I don’t believe in juries of all one gender, either.’
Under the present set-up, the only way to rectify such situations is for the Crown to agree to use its right to ‘stand by’ a juror in the hope that the next name called will be more suitable. Possibly, Miss Kennedy thought, such an approach could be more formalised and judges could be instructed to encourage it. But she is definitely not of the school of defence lawyers who think the only good juror is a dumb juror.
She admits she once nearly threw Hans Eysenck, the controversial psychology professor, off a jury, having recognised him on the panel, ‘not because of his views on race: I was concerned that he was quite a powerful personality and would absolutely dominate in a controversy’. Anyway, she thought better of it and let him stay. Now, she said, ‘What I want in a jury is some intelligent people. I don’t want a lumpen jury. There are some people who do. I want them to think hard about what the burden of proof really means.’ Sometimes juries are called upon to do quite difficult things, she said, where the evidence is just not good enough. And for that you want people on the jury who are going to keep reminding the others of what the standard of proof requires.
Hmm, I thought, as I saw her off to see Garter King of Arms: Helena Kennedy thinks the intelligent juror is an antidote to careless convictions; others are convinced that more intelligent jurors would mean fewer perverse acquittals. Come to think of it, there is no reason why both views should not be right.
THE JUDGES
No head of an Oxford college can have seen the inside of a jail as often as the ex-Principal of my alma mater, St Edmund Hall. In his pre-academic role as Her Majesty’s Chief Inspector of Prisons for England and Wales, former judge Sir Stephen Tumim became a great deal better acquainted with the living conditions of convicted criminals than any of his fellow members of the judiciary ever was or is ever likely to be. His liberal views on prison reform are famous. So could I assume that he was also a supporter of the jury system?
‘I am basically in favour,’ he told me, ‘though I must say that from the judge’s point of view it is frightfully irritating. You listen to a case and, as the judge, you want to decide it. It is much more fun trying civil cases. In civil cases you decide what happened. In criminal cases you have to sit there without interrupting – and you can’t even write your letters, as you have to keep at least one ear open on what is going on.’ The amiable Sir Stephen is much better than most judges at cracking jokes. In his academic corduroys and bow tie it was hard to imagine him on the bench, bewigged and beetle-browed. As he got up to pour us sherry I noticed his footwear: a pair of espadrilles in Oxford blue.
In the vast majority of cases he reckoned that a judge can guide the jury to some extent during a trial, without risking an appeal. ‘Indeed, I think that is part of the judge’s job.’ Nonetheless, he said ruefully, ‘Very often you don’t agree with the jury – maybe one in ten cases. There is nothing you can do about that. And I think it is improper for a judge to indicate to a jury, even just by a bit of body language, that he thinks they are mistaken.’ But there it was. The jury served a worthy political purpose and it was inconceivable that it could be done away with. ‘The jury system,’ he beamed contentedly, ‘is one of the necessary irritations of life.’
We talked a good deal about the composition of juries. Juries aren’t always as dense as they appear, in Sir Stephen’s experience. Sitting as a recorder in Oxford many years ago, he remembered an occasion when counsel had objected to a particularly unimpressive-looking panel. They had been especially worried about one old man who came on to the jury with his collar all over the place, looking terribly scruffy. ‘He was challenged – because he hadn’t shaved for about a week. But I recognised him,’ Sir Stephen chortled. ‘He was a professor of theology – a man of great distinction.’
He did not seem over-regretful that peremptory challenges had been abolished. Although an all-white jury judging a black defendant might look bad, ‘I actually don’t think I believe in using a challenge to choose whites and blacks. I think you have got to go on the basis that people are going to act fairly …’ But he would go along with the idea of encouraging judges to get together with the prosecution to exercise its stand-by in cases where the composition of the jury seemed unsuitable. ‘The Lord Chief Justice could do that.’
He was pretty sure that judges deciding cases alone would not give more satisfaction to members of the public. Judges vary enormously. When you have a judge such as the late Sir Bernard Caulfield who went on about Jeffrey Archer’s wife Mary being ‘fragrant’ it is very difficult to say that jurors are any more out of touch than the judiciary.
Sir Stephen’s particular gripe was about the way in which the judicial process seems to have been tilted away from straightforwardness. ‘The thing that has really transformed jury trials for the worse in my lifetime is photocopying. Photostats are the real disaster of the jury system. In my childhood, indictments were much shorter because it all had to be copied by hand. My father was Clerk of Assize of the old Oxford circuit: he wo
uldn’t have a typewriter within hearing. All the indictments were prepared by hand: that meant you didn’t put many counts in. It had a very healthy effect in keeping charge sheets short. You didn’t chuck in a dozen extra counts in order just to catch the defendant out. You had one count and got on with it.’ It was far easier now to fox a jury with piles of paper, especially in fraud trials.
One means of simplifying trials would be to follow the example of the civil courts. ‘I have always had a theory of judging, especially in civil cases, that it is terrifically worthwhile for the judge to get there early. He then reads the papers before he goes into court.’ Sir Stephen was referring in particular to the written ‘pleadings’ submitted in advance by both sides in a civil trial – outlines of the plaintiff’s and the defendant’s cases. He saw no reason why a similar practice should not be applied in the criminal courts where, as things stand, only the prosecution must give a detailed account of its arguments. Since 1997 the defence must also let the judge know its intentions, but need submit only an outline of its case.
Sir Stephen supported the idea of swearing in replacement jurors for long cases. But he was firmly against the State’s having a right to appeal against jury acquittals. ‘There must be an end to it. Somebody who has been acquitted by a jury ought to be able to say “Right, that’s it.” ’ Otherwise, he thought, the police would never stop grubbing around trying to prove themselves right. And anyway, if someone was wrongly acquitted, that was not the end of the world.
The day after I visited Sir Stephen and we had strolled about my old college’s endearing little quad, I called on a high court judge in the forbidding surroundings of the Law Courts in the Strand. ‘Mr Justice Popplewell’ it said in large letters on the door of his room. Sir Oliver was sitting at a smallish desk in front of a wall of bookshelves, filled from floor to ceiling with handsomely bound legal tomes. The first thing he did was to hand me a scrap of paper on which he had written down Mark Twain’s scornful remarks about the jury system: ‘We have a criminal system which is superior to any in the world and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read.’
Sir Oliver said he would not weep if juries were abolished, though of course that was wholly unlikely to happen in our lifetimes. Apart from the cost of jury trials, they too often led to the wrong result. In his experience as a judge, between 40 and 50 per cent of acquittals (and a minute proportion of convictions) he regarded as perverse. It was all very well to shrug off such verdicts as a regrettable flaw in the system, but, as he said more than once, ‘You cannot regard this as a game.’ Sometimes the consequences were horrendous. He recalled one case, for example, where an East End villain had been charged with a particularly horrible murder (he had used a sword). The two key prosecution witnesses had been so frightened that their evidence was shaky. Even so, the jury’s decision to acquit had astonished the court. The result was that this extremely dangerous man, with a long record of criminal activity (which of course the judge, though not the jury, knew all about), had been released back into the community. Worse, because he had got off on this high-profile occasion, it would be very difficult for the police ever to mount a successful prosecution against him again, even if they could find witnesses brave enough to come forward.
‘We don’t know what goes on in the jury room,’ said Sir Oliver, though he admitted that as a young barrister he and his colleagues had occasionally overheard snatches of juries deliberating when the walls of their room were thin enough: the level of debate was not edifying. Juries could vary strikingly. He always made a point as a judge of addressing juries at the start of a trial and noticed very quickly which were going to be bloody-minded and which were eager and interested – like the jury which, having found a defendant guilty in Maidstone, voluntarily turned up en masse in Lewes to watch him being tried for a second offence.
It was obvious that verdicts were not always reached in a sensible way. He remembered a case where a woman caught stealing an improbable quantity of tins of cat food had been acquitted. The reason, it appeared, was that the jury felt it would be wrong to convict her, when only that day another jury had found a man charged with a very violent offence not guilty. Sauce for the violent goose, they reasoned, should be sauce for the cat-food-thieving gander.
Certainly, he thought, complex fraud cases should be heard by a tribunal rather than a jury. He was also in favour of magistrates rather than defendants deciding whether to send ‘either-way’ cases to the Crown Court. At present, too many such cases ended in guilty pleas anyway. But he seemed to agree with Sir Stephen Tumim that shoplifting was ‘very often a jury case’. Like Sir Stephen, he had sat as a recorder in Oxford from time to time, where the genteel shoplifter is a familiar figure.
Sir Stephen recalled such people trembling before him in the dock. ‘Members of the upper middle classes: dons and dons’ wives from North Oxford. Magistrates nearly always convicted them – unless they happened to know them socially,’ he joked. ‘Juries would be much more tolerant. I was all in favour of acquittals, even if they’d got it wrong. A guilty verdict was just too damaging to their reputations. A lot of these people were probably accused of no more than walking out of a shop with a box of chocolates under their arm. But a box of chocolates can be a serious matter if you are an elderly clergyman.’
The point about juries is that, unlike magistrates, they have not seen it all before and are therefore disposed to be open-minded. ‘If you were charged with shoplifting and you hadn’t done it, what would you do?’ Sir Stephen asked me. ‘It’s a very interesting question. I’d rather be judged by a jury than by magistrates. I think in the end serious problems of dishonesty should be heard by a jury.’
THE EXPERT WITNESS
Michael Zander is a leading expert on jury trials and was a member of the Runciman Commission on Criminal Justice. We met in his small office at the London School of Economics, where he was Professor of Law. He is a strong supporter of the jury system for serious criminal offences. But he was also in favour of the Commission’s controversial recommendation to end the defendant’s right to opt for jury trial in ‘either-way’ cases.
There were administrative and financial advantages. More importantly, he believed, there was also a matter of principle involved, namely that it is more appropriate that the court should select the trial venue than that the defendant should, just as it is the court and not the defendant that decides which judge should preside over a Crown Court trial. In 80 per cent of ‘either-way’ cases defendants themselves choose to appear before a magistrates’ court, since they tend to impose lower sentences. Of the cases that are sent up, more than 60 per cent go up at the magistrates’ insistence anyway. And of those defendants who make that decision themselves, more than 70 per cent subsequently plead guilty.
Professor Zander was less firm on the subject of peremptory challenges, but did rather favour their restoration. The three peremptory challenges were useful as a sop which allowed defendants to feel that not everything was stacked against them or out of their control – though of course, even after a challenge, one had no guarantee who the next person from the panel would be. The defence can still challenge a juror ‘for cause’. The Catch 22 is that no questions may be asked to establish what the cause might be. You have somehow to know it in advance. Professor Zander recalled that in a recent case in New Zealand, a rather non-compos-looking juror struck both the judge and the defence as unsuitable. So they asked the prosecution to use its ‘stand-by’, which is what happened.
Oddly enough, the Home Office had embarked on a study of the effects of peremptory challenges just before their abolition under the Criminal Justice Act 1988. The results of the study appeared contemporaneously. Ironically, they showed that there was no evidence to support the belief that men in suits and blue-rinsed matrons were being stood down in droves. Nor were there marked differences in acquittal rates between unchallenged juries and those where challenges h
ad been exercised. Under Runciman, Professor Zander was in charge of a study of his own, anatomising three thousand Crown Court cases over a two-week period. Asked whether they thought peremptory challenges should be restored, 56 per cent of defence barristers said yes, 56 per cent of prosecutors said no, and 86 per cent of judges also said no.
Put the bench’s preferences on the matter alongside the notorious abuses of the system in the USA and I would say it was a fair bet that peremptory challenges are not due to make an imminent reappearance in this country.
In any event, Professor Zander remains a staunch proponent of the random selection of juries.‘I like the idea of picking twelve people, as it were, from the streets,’ he said. His own researches show that if you analyse juries in terms of their class and background, the proportions closely mirror those in the population as a whole, contrary to the received wisdom. All the same, he was enthusiastic about the system in Massachussetts, New York and Arizona: in these states it is now mandatory that no one (except in the direst circumstances) should be excused jury service. He had been amused to learn that in the spring of 1997 the presiding judge in the New York Court of Appeals had himself been summoned. So was the professor’s own father-in-law, who was not only at attorney himself but also 94 years old.