Trial by Jury

I am aware that recent trial outcomes have caused ripples in Blogistan. Ian, for example questions the jury system in the wake of the miscarriage that occurred in the Kingsnorth trial. I have some sympathy with his position and have never regarded the jury system as something that is sacrosanct; after all, juries have sent the innocent to gaol and in previous eras to their deaths. It is a flawed system and should always be viewed as such.

Today, Sam O’Neill takes a similar stance in the Times.

Why is it considered an ancient liberty that must be defended at all costs, to have guilt or innocence decided by a dozen people who would rather be anywhere else than stuck in a stuffy courtroom being in turn bored and bamboozled by barristers?

Who says that those 12 jury members – open to intimidation, vulnerable to romance and faction fighting, susceptible to corruption or simply to listening to their iPods under their hijabs – can guarantee that justice will be done.

He does have a point. I have never been called for jury service, but should that happen, then I would treat it with the gravitas that it deserves. I will do my utmost to weigh the evidence before reaching a conclusion. That said, I work in an environment that is entirely evidence based – I am able to reject anything that is not supported by evidence. O’Neill, however, is expressing concern about those jurors who are barely literate and – if we consider the Kingsnorth verdict – those who subscribe to the new Green religion to the point of excusing behaviour where there is clear evidence of guilt. That is, they are driven by prejudice, not the evidence or lack thereof. That, I do find deeply worrying. After all, if I was accused of a crime that I did not commit, I would be looking to the jury to weigh the evidence, find it wanting and acquit. I’m not too convinced that this would happen.

While jurors can be of questionable quality, a greater problem still is that the criminal justice system sets out deliberately to handicap them. Long before a case gets to trial, lawyers and judges spend months weeding out elements of the evidence that the jury cannot hear. When the 12 men and women take their seats in the jury box they do not know that they will hear only a partial version of the case.

Rules of evidence are not, themselves, an indictment of the jury system. There may be good reasons why evidence is withheld – for fear of prejudicing the jury. O’Neill cites one such example:

At Bristol Crown Court in 1999 jurors acquitted Gary Glitter of sexually assaulting a schoolgirl. Minutes after returning their verdicts, they learnt for the first time that the former pop star had admitted amassing a huge library of 4,000 child abuse images. The law decided that, if the jurors were to know that he was a self-confessed paedophile, it would prejudice his trial for child sex abuse.

Ah, yes, a nicely emotive case. The reason that the jury was not told of the pictures was simple enough – they were not trying the defendant for this offence. And, because he had downloaded pictures did not mean that he had assaulted this girl. The jury’s job was to look at the evidence of this particular accusation and decide whether there was enough evidence to convict. That and nothing more. It says something about human nature – or, perhaps more specifically, our society – that the evidence of the downloaded pictures needed to be withheld. A decent jury should, despite this knowledge, make a decision based purely on the evidence placed before it by the prosecution, remaining entirely unbiased by any other cases. A nice ideal, but, somehow, I doubt that would happen. A more likely scenario being that Glitter would have been tried and found guilty twice for the same offence.

Juries have also played their part in some of our worst miscarriages of justice, such as the cases of the Birmingham Six and Guildford Four. But a judge sitting alone in one of Belfast’s Diplock courts threw out the ill-prepared Crown case against Sean Hoey, accused of the Omagh bombing, and a district judge in London called a halt to the fit-up job in which Lotfi Raissi, an Algerian pilot falsely accused of training the 9/11 hijackers, was almost extradited to the US. How would juries have performed in such emotive trials?

Again, O’Neill is being misleading. These cases were not miscarriages because of juries, they were due to failures within the police and prosecution, the manufacturing of evidence and false confessions. The Kiszko case was a similar situation whereby evidence was withheld by the police that should have gone to the CPS who would have not prosecuted the case had they seen it (Kiszko would have been cleared immediately on the forensic evidence).

Sam O’Neill comes to the conclusion that the jury system is broken and should be replaced. He might – just might – have a point if he didn’t muddy the waters with an argument that is nothing to do with juries; rather it is to do with poor investigation, corruption in the police or sheer incompetence in the investigation and prosecution. If the prosecution fails to prove its case, then they deserve a not guilty verdict. The jury is the final bastion against the professionals, an independent arbiter of the evidence. Or, at least, it should be. Kingsnorth causes one to wonder about that.

All of that said, I mentally place myself in the dock and look about at my peers and ask; Would I trust this lot, the Big Brother/Eastenders society that understand little if anything of the chain of evidence, to decide my fate? Probably not, but it’s the best we have…