Abolishing the jury system would be criminal

Last week, the jury trying Vicky Pryce, the ex-wife of former Liberal Democrat MP Chris Huhne, on allegations of perverting the course of justice, failed to reach a verdict and was discharged. She will face a retrial with a new jury this week. But the big news was not the non-verdict or the retrial, but question marks over the competence of the jurors and the viability of the jury system itself.

Prior to being discharged, the jurors passed a series of 10 questions to the trial judge at Southwark Crown Court. According to the judge, the questions showed that the jurors had a ‘fundamental deficit in understanding the trial process’. The questions included whether the jury could make their judgement on the basis of facts for which there was no evidence, and what ‘reasonable doubt’ meant.

At the beginning of last week, it seemed that the jury questions were going to be treated as little more than an unusual conclusion to an unusual and rather depressing trial. Pryce’s trial has seen her private life, and that of her ex-husband, gratuitously displayed in the courtroom and across the media. Because Pryce is running the highly unusual defence of ‘marital coercion’, huge swathes of personal material have been considered fair game and treated as admissible evidence. The trial evolved into a truly mawkish spectacle, with recorded private phone calls played to the jury to demonstrate Huhne’s controlling behaviour, and private communications between Huhne and his son leaked to the press showing in grim detail the breakdown of his familial relationships. The unusual end to the trial merely echoed its unusual content. The jury’s perceived misunderstanding of the case no doubt mirrored the confusion felt by many outside the courtroom as to why the case was the subject of criminal litigation in the first place.

But by the end of the week, some were seriously using the case to discuss reform to the system of trial by jury, including arguments for greater vetting of jurors and abolishing the jury system for complex cases. The fact that a series of 10 questions asked in a single, highly unusual, case can cause such significant tremors throughout the commentariat show how willing the detractors of the system are to rely on anecdote and scoffing, rather than hard evidence of the any failings in the system.

The opportunism employed to attack the jury system is obvious in this case. It is worth, as a starting point, asking whether the judge was right to say that the questions showed a ‘fundamental deficit of understanding’. For one, the term ‘reasonable doubt’ has caused so many problems in the courtroom over the past hundred years that judges are now required to explain it to the jury in every case. Lawyers tend not to use the term at all. To ask for it to be explained is not unusual.

Even questioning whether a jury can find facts for which there is no evidence could be read in a number of ways. Perhaps the Pryce jury was seeking a strong affirmation of the basics of the trial process because one of its number was asserting improper justifications for his or her conclusions. The fact that this question was asked actually shows that the jury was taking its duties seriously. It proves that 12 people sitting on a jury allows for misunderstandings to be corrected by committee. Far from proving the inadequacies of the system, the questions prove that juries are not afraid of scrutinising the process to which are contributing.

One reason the debate around the jury system arises in this flailing, incoherent and kneejerk way is because the serious work that has been done to upset the jury system in the past has in fact tended to show how effective it is. In 1986, the Roskill report into the role of juries in serious fraud cases failed to identify any evidence that juries were less capable of trying fraud than expert accountants. Yet despite this Roskill, still recommended the abolition of juries in such cases to make the system ‘more expeditious’.

The Auld report in 2001 similarly failed to identify any evidence that juries were incapable of trying difficult cases, but again argued for their abolition in complex fraud cases on the basis that using juries was too expensive. Despite looking for it throughout the years, there is no body of evidence that juries are incapable of understanding the trial process – which is why those who criticise the system so regularly have to resort to anecdote, or the system’s cost, to justify their position.

Thankfully, many have rightly pointed out throughout last week that the jury system is a vital safeguard to the powers of the state. Since the twelfth century, the system has ensured that the citizenry maintain some significant control over the operation of that most draconian of state powers. It remains, in the words of the late Lord Denning, the ‘lamp that shows that freedom lives’. But the jury is also an embodiment of another fundamental principle of our justice system: that finding someone guilty is not merely a process of deciding whether they have committed a certain criminal act, but also whether or not, when considered against the morals of our society, they are deserving of punishment.

The trial-by-jury system is a process of a defendant being judged by his or her peers. A juror’s ability to judge a fellow citizen’s guilt arises in virtue of their own experience of the world. Since the abolition of the property qualification in the 1970s, which held that a juror must own property in order to be called for jury service, we have acknowledged that we are all capable of judging guilt solely in virtue of our lived experience. It is not simply a process of understanding the evidence before you, although this is important to undertaking the role of a juror, but also of holding up the actions alleged against the defendant to a moral compass developed through having been a fellow member of society.

When you consider the nature of the judgement being made by jurors in criminal cases, the question as to whether someone could be vetted for their ability to be a juror seems redundant. These are social questions, which are answered simply by recourse to one’s own experience. They are not the kind of questions you can train people to answer.

That is why removing, or even placing greater vetting, on jurors would cause a fundamental shift in the way we administer justice. It would dilute the principle that justice is passed in the name of all people, irrespective of education, wealth or status. It would remove the connection between the black letter of the law and contemporary morality. It would sever the link between the courtroom and the people the process there purports to serve.

But, most importantly, it would prevent society deciding who deserves punishment and who does not. Not only would this place enormous power in the hands of state officials, but it would deny us, the citizenry, the right to dictate the morals of the society we live in. Those that have cynically used the Pryce case to argue that jurors need greater vetting, or that we should have greater resort to experts when judging guilt in complex cases, have themselves failed to appreciate a basic principle of our justice system: that guilt can never be a matter of expertise.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.