“If you are sure you convict him; if you are not you acquit him. That is all there is to it.”
14/12/2011 3 Comments
The English jury is a remarkable political institution. It selects twelve ordinary people chosen at random from the widest population; it convenes them for a particular trial; it entrusts them with the ultimate power of decision; it permits them to carry on deliberations in secret and to report their final judgment without giving reasons for it; and after their brief and unpaid service to the state has been completed, it orders them to disband and return to private life.
Until I was called up for jury service recently, this was an abstract thought experiment. After having served and decided on three criminal trials, I consider it a privilege to have been allowed to take part in an all-too-rare exercise in genuine democracy and believe that a jury trial remains a fundamental barrier against tyranny and an over-mighty state.
The First Day of Jury Service
Arriving at 9.15 am, I joined 100 or so other nervous jurors-in-waiting at a major London Crown Court. Except for the odd courtroom drama, I wasn’t really aware of what lay before me. Would the jurors take seriously the task at hand? Would I be bored and unable to concentrate on tedious legal minutiae? Where would we go for lunch? What if I was unlucky and was chosen for a fraud trial, which according to popular legend, could go on for months? How would I interact with the other jurors?
After completing various forms and proving our identity, we were shown a short film explaining our duties and responsibilities. The need for confidentiality and an absolute prohibition on discussing details of our trial and deliberations with non-jurors (even family and friends) was stressed repeatedly, as was the prohibition on using social media to discuss any aspect of our case. If found guilty of these offences, we’d be in ‘contempt of court’ and could be fined and imprisoned – as happened recently to a juror who discussed her case with the defendant.
The Criminal Process: Inside the Crown Court and the work of the Crown Prosecution Service – a good overview.
We’d been advised to bring reading material as there’d be a lot of waiting until chosen for a trial and even then, legal arguments and other friction within the system ensured a lot of waiting. And more waiting. After a few hours of waiting I was called to my first trial. A court usher led fifteen of us (a mixture of new jurors and those on their second week) to our court. Our names were read out at random and as each name was called we answered, “Yes” and walked across the court to take our place on the juror’s bench. When we were all seated, the defendant had the opportunity to reject any jurors he deemed unsuitable.
Directly in front of us sat the Defence and Prosecution barristers. To our right sat the judge, literally and actually on a higher plane. To our left, behind a glass screen sat the defendant with his warder. We were individually sworn in, each affirming an oath on the holy book of their choice or a non-denominational statement for the atheists. There was even an oath-taking statement for Rastafarians which said: “I swear by almighty Jah that I will faithfully try the defendant and give a true verdict according to the evidence.” Unfortunately there were no Rastas on our jury, so we were denied the opportunity to hear this oath spoken out in court.
The judge then spent some time outlining the reasons for our presence, the long legal tradition and history (400 years and more) behind the jury trial and the need to listen, take notes (if necessary) and thanking us for our service. He reminded us again to listen to witnesses very carefully to decide if they were telling the truth. The implication being that many witnesses lied on oath. He warned us against discussing the case with non-jurors, of communicating on social media and of carrying out our own research into the case. The reason was simple. This was not our job. Our only task was to listen to the evidence and decide on the evidence placed before us.
Examples of court dress worn, and below – possible alternative dress. From left: High Court Judge, Circuit Judge, District Judge, Barrister or advocate, Court Clerk, Court Usher. Photograph: PA
The Sequence of a Trial
The Prosecution barrister began the trial by outlining the offences (allegedly) committed by the defendant. He explained the precise legal statue under which the defendant had been brought to trial. Each had his or her own style, some less successful than others. We were conscious that their remarks were directed towards the jury as it slowly became clear that we were the most important people in the courtroom. Only we (and not the judge) had the power to convict or acquit a defendant.
The Defence barrister then did his best to cast doubt on key prosecution evidence by calling into doubt the integrity of the witness or by use of alibis. E.g. the defendant was not present at the place and time the crime occurred.
Both sides called witnesses to bolster their case and attack their opponents’ case. The judges were remarkably patient, thoughtful and kind to the ordinary people called as defence and prosecution witnesses. They were aware that appearing in a courtroom is a daunting experience – even for some Police officers for whom this must be a regular part of their job.
Before participating in these trials, I’d assumed that a judge would be naturally biased towards the Prosecution (i.e. the State) viewpoint. Not true. On many occasions he rounded on the Prosecution barrister for time-wasting and for concentrating on irrelevant aspects of the case. He was equally short with the Defence barristers who displayed tendencies towards vagueness and irrelevant lines of enquiry.
Even the defendant (when he or she chose to give evidence) was treated fairly and sympathetically by the judge. But the Judge’s real value was to come later, during the ‘summing up’ phase after the prosecution and defence had made their final speeches to the jury.
Re-learning to Listen
For almost two weeks, we sat and listened in silence without distractions, interruptions, diversions, snacking, chewing, smoking or talking. No multi-tasking, no simultaneous reading, writing, texting, emailing and decision-making. We concentrated on one thing at a time, for hours at a single sitting.
Points of Law
Often the trial would be interrupted by the Defence or Prosecution making a ‘point of law’ that required further discussion, which if it had been made in front of the jury could have prejudiced our eventual decision. We were asked vacate the court, return to the jury deliberation room and wait until these points of law were clarified.
The adversarial nature of English Law was most apparent during witness questioning. Both sides questioned the witnesses firmly and sometimes aggressively to probe for any weaknesses in their statements. As the Judge reminded us at the start of the trial, we had to assess how truthful the witnesses were on the basis of what they said.
The Closing Speeches
Closing speeches were made, first by the Prosecution and then by the Defence to highlight the strengths of their case (the Prosecution) and cast doubt on the evidence presented (the Defence). Both emphasised that the final decision would be ours alone, based on our innate common sense and good judgement.
The Judge’s Summary
Finally the Judge summarised the entire trial, starting with the prosecution’s case, witness statements, new facts that had emerged during the trial and the defence’s case. Over a three or four-day trial, it is too easy to disregard facts presented on the first day and we may have attached undue importance to the evidence presented on the final days. He was extremely careful not to favour one side over the other. In certain instances, he ‘directed’ the jury to take special note of certain aspects of the evidence. The summing up was a masterful exercise in language and clear thinking.
Here’s Hon. Justice Judge Blofeld’s summing up from a criminal case in 1993 giving a flavour of the kind and tone of language used.
“Let me start by telling you what our respective functions are. I have had to control the trial as it went along day by day. I now have two functions left. I have to give you directions on the law, and you must abide by my directions and apply the law to the facts. My province is to deal with the law. I have a further duty which is to remind you of such issues of fact as I think will be helpful to you in doing that. I do not have the duty slavishly to repeat every word of the evidence. If that were the case we would be here for a very long time indeed.”
He reminded us that to arrive at a guilty verdict we had to be sure that the defendant had committed the crime. It was not for the Defence to prove the defendant’s innocence, but that the Prosecution must prove his guilt. We were repeatedly reminded of this critical distinction. And a unanimous verdict was required from the jury.
As Justice Blofeld said in his summing up during criminal trial in 1993:
“…the Crown bring this case; the Crown have the burden of proving the guilt of this defendant. That burden never shifts. The defence at no stage in this case have to prove anything whatever to you. Before you can convict the defendant on any of the counts, the Crown have to satisfy you so that you are sure that he is guilty of that count. If you are sure you convict him; if you are not you acquit him. That is all there is to it.”
Against all expectations and pre-conceptions, our juries were genuinely representative of society. It encompassed all segments of society from professionals to manual workers, from housewives to house-husbands. Black, White, Asian, Chinese, Britons and foreigners were all represented. It was a typical London jury, reflecting the character of the city. Sceptical, witty, quick, blackly humorous, not easily impressed but above all, fair. Everyone treated his task with extreme seriousness. A jury foreman was chosen by ballot to conduct the discussion and to ensure that the less voluble members had a chance to have their say. It became quickly clear that if these cases had been easy (i.e. there was absolutely no doubt about the defendant’s guilt), we wouldn’t be deliberating over the facts. Above all we concentrated on the facts and when some people (myself included) tended to stray off into disallowed areas (e.g. conjecture, hypothesis), other jurors firmly brought deliberations back to matters of fact and law. Each juror had to explain the reasons for their personal verdict on the case. This naturally led to further discussion and debate until a unanimous verdict was reached.
The deliberations lasted for many hours. We were aware that defendants and victims lives would be irrevocably changed by our verdict. Would Black and Asian jurors be more sympathetic towards a Black or Asian defendant? Based on my experience, absolutely not. The defendant’s ethnicity was wholly irrelevant to her guilt or innocence.
The court clerk asked the foreman if a unanimous verdict had been reached. He answered “Yes” and gave the verdict. The defendant reacted either with an anguished cry or sheer joyful relief. Regardless of whether they’d won or lost the case, the Defence and Prosecution barristers did not betray their emotions. The judge thanked us again for our participating in this exercise in genuine democracy (“unlike voting” as he remarked) and released us to the next trial.
In guilty verdicts, during sentencing, the judge disclosed the defendant’s previous convictions and criminal history, of which we had been unaware, as it could have prejudiced our verdict. Then, on to the next trial, until our two weeks’ jury service was completed.
Tips for prospective jurors:
- Wear comfortable clothing. A suit and tie is not recommended.
- Bring books, magazines and an iPod.
- Bring your own coffee.
- Bring some throat lozenges as incessant coughing in dry, airless courtrooms annoys everyone.
- Leave your preconceptions about the case and defendant at the door.