'The Defects of Jury Trials': John Spencer

The questions that the jury asked the judge at the Vicky Pryce trial before he discharged them have caused yet another big discussion about the merits and demerits of jury trial. Some of the questions were pertinent but some suggested the jurors, or some of them, had completely failed to understand what their duties were supposed to be. Though juries have their passionate defenders, including many lawyers who appear in front of them and judges who preside at jury trials, it’s impossible to deny that in its present form jury trial has some grave defects. It’s very slow: the Vicky Pryce trial, first time round, took six days for a case in which the evidence was relatively simple and the legal issues likewise; it’s very expensive, partly because it’s slow and partly because it happens in the crown court which is an expensive tribunal; and it is surprisingly accident prone. In 1995 there was a murder trial after which it was revealed that some of the jurors had sought to make contact with the spirit of the murder victim by using a Ouija board, on account of which the Court of Appeal had to quash the conviction and order a retrial at the end of which the new jury convicted without the benefit of spiritual intervention.

There was the case in 1981 where, on the 12th day of a fraud trial, the judge had to discharge the jury because some young women on the jury had got drunk celebrating their 21st birthday during the lunch hour and were seen to be making sexual advances to a male juror which, surprisingly perhaps, he was not at all happy with. Two years ago there was the “Crapland” case as it was called, a prosecution for some fraudsmen for running a fraudulent Christmas site called “Lapland”, and hence its unattractive nickname, for which the conviction was eventually quashed when it was revealed that one of the jurors had been exchanging texts with her boyfriend in the public gallery in order to find all the things which they weren’t supposed to hear that were happening when they were out.

I have a file of these cases collected over many years and I could give a great many other examples. And then there are what in air safety parlance are called the “near misses”; there are plenty of those. A couple of years ago there was the trail of Delroy Grant, accused of 29 appalling rapes over ten years in which he had broken into old people’s houses and raped them. His DNA was found at the scene of every crime and his defence was that during his marriage, which had broken up many years before, his wife had been saving samples of his semen in order to rush out to the scenes of these burglaries and deposit his semen in order that he should later be framed for the offence. After eight hours of deliberation, the jury eventually convicted but only by a majority of ten to two. Two jurors thought that Grant’s preposterous defence left them with a reasonable doubt. If a third had joined them then there would have been a hung jury, just as in the Vicky Pryce case.

What’s the problem here? It’s inherent, I believe, in putting 12 inexperienced people, selected completely at random from the population, and leaving them to decide without anyone to watch over them and without their having to give any reasons for their decision at the end. There’s an obvious problem of quality control. Most people who are called for jury service are serious, or at any rate enough of them are serious enough to see that the serious ones predominate. But, as the horror stories I have just given you show, this is by no means always so and sometimes irresponsible people, or very ill-informed people, or very timorous people, predominate. To make a decision on an important criminal case where the evidence has been contested it’s necessary to have a number of qualities. You have to be reasonably intelligent, you have to be fairly mature, you have to have a sense of civic responsibility and you have to have some degree of confidence, and this, sadly, is plainly not always the case.

Could something be done to improve the position? Yes, various things might be possible. Instead of simply selecting juries out of jurymen who are drawn at random from the electoral roll, people could apply to do jury service and be trained for it. Or we could have juries of laypeople sitting with a judge to deliberate with them, as happens, in fact, in most places in continental Europe where they have juries which operate in that kind of way instead of the way we do it here, in France and in Germany and in Italy, for example.

The problem about no jury reasons is that we don’t know at the end of the trial whether the jury convicted on intelligible grounds or unintelligible grounds or for acceptable reasons or for unacceptable reasons. The jury gives no reason for its verdict of guilty or not guilty. No questions are permitted afterwards that might infringe the secrecy of the retiring room. Not only are no questions permitted, it’s actually a criminal offence to try to ask them. This is worrying because it could mean that convictions are brought about for irrational reasons, as well as acquittals, and there’s no way of finding out.

In 2004, the House of Lords in the leading case of Mirza said, “We refuse to make any investigation into the secrecy of the jury room”. Apparently the secrecy of the jury room is a quality so important that it has to be maintained even at the risk of miscarriages of justice. Should juries be required to give reasons for their decisions, as professional judges do and as benches of lay magistrates have to? Some people say no, it would be wrong because it would wipe out something called jury equity”. That’s to say the facility of a jury to acquit in the teeth of the law and the teeth of the evidence as a moral comment on a law they disapprove of or a prosecution they think was brought in an oppressive fashion, as famously happened in 1985 when a jury acquitted Clive Ponting of Official Secrets Act offences when he had leaked information about the sinking of the General Belgrano during the war over the Falklands to an MP in a way which was embarrassing to Mrs Thatcher. But if we think that jury equity is important to maintain, surely we could keep it if juries were required to give reasons when they convict but were still permitted, if they wish to, to acquit without giving reasons.

Defenders of juries typically put forward the argument that juries probably get it right most of the time and, as the journalist Simon Jenkins said about that, “Anyone who ran a hospital, a school, a railway or an army on such a basis would be thought insane.” Surely we ought to consider seriously ways of improving our current version of jury trial. Suggestions that we should interfere with jury trial usually produces the objection that it’s interfering with an institution which has existed since Magna Carta in 1215. Actually, jury trial wasn't created by Magna Carta in 1215 and it has very greatly changed over the years. A very major changed happened in 1972 when the property qualification was abolished. Before 1972 you could only serve on a jury if, in addition to being on the electoral roll, you satisfied a property qualification, which essentially meant that you owned property or you were a householder and, as Lord Devlin famously said in 1955, this resulted in juries that were predominantly “male, middle-aged, middle-minded and middle-class”. This was obviously unacceptable but in a crude way it did at least ensure that juries usually consisted of people who were mature and had some degree of self-confidence.

After we changed that in 1972, defence lawyers started, for the first time in modern history, making use of peremptory challenge to challenge off juries people who appeared to be intelligent, and hence it became known that if you wanted to avoid jury service you should put on a suit and turn up to jury service with a copy of the Daily Telegraph or the Financial Times under your arm. This became such a scandal that, following the report of the Roskill Committee in the 1980s, peremptory challenge had to be abolished. As the playwright Shaw famously told us, “Every profession is a conspiracy against the laity”, and for that reason it’s essential to maintain lay participation in criminal justice. It’s too important to leave to the professionals alone.

Traditionally we’ve had another form of very effective lay participation in justice: Justices of the Peace in the magistrates’ courts. And it surprises me how successive governments, while reluctant to tackle the jury question, because it’s emotive, have been busy quietly shutting down the lay magistracy by closing the magistrates’ courts and by appointing district judges, professional judges who replace magistrates’ courts whilst directing the business of the magistrates’ courts increasingly to the police to impose fixed penalty notices instead of having prosecutions. In the magistrates’ courts, the Vicky Pryce case would have taken a morning or a day at the most and surely that is the tribunal in which a case like that should have been tried and that surely is the jurisdiction that the government should be developing, not seeking, as it seems, to close down.