Wednesday, 17 February 2010

Juries on trial

The Today programme was leading this morning on new research into the inner workings of the jury room - the mysterious but cherished (yet increasingly questioned) heart of the criminal justice system. The message was clear: jurors are too thick to understand judges' guidance, even in relatively simple cases, and the naughty things find it difficult to resist looking up information on the Internet. Clearly a system in crisis. Dominic Casciani's website report was headlined, starkly, Jurors struggle to understand judges. The broadcast item acknowledged that the report by Professor Cheryl Thomas gave the jury system a thumbs up overall. But the main point was the need for Clearer Written Instructions. Otherwise juries risked Making Mistakes.

The tenor of the BBC's coverage led Douglas Carswell MP to interpret the new research as proof of an official effort to belittle and downgrade juries. He wrote on his blog:

Their report today suggests that ordinary folk are simply not expert enough. The citizenry can't even follow the instructions they're handed by judges, complain the report's authors. If only justice was left to the experts, they seem to imply ...

The jury system, thinks Carswell, has been undermined by the modern obsession with expertise and rules. It's just too uncertain and democratic - bottom-up rather than top-down. Grand juries have long since been replaced by the quango-like Crown Prosecution Service whose officals are now "in effect determining guilt." Magistrates have less discretion than they did, major trials can now take place without a jury at all if it's "too complex" and "the scope for juries to use discretion has been steadily undermined." This new report is part of this drift away from juries, says the MP, since "of course experts at the Ministry of Justice will think that experts at the Ministry of Justice are better at administering justice than the people."

Certainly there has been undermining of juries under New Labour. The impression sometimes given is that the ancient form of trial by one's peers - what Lord Devlin famously called "the lamp that shows that freedom lives" - is an archaic curiosity. But the Thomas report said no such thing. The BBC coverage was, as so often, seriously misleading.

Casciani admits that Prof Thomas "said the findings did not necessarily mean juries were returning unjust verdicts because they often translated legal language into words they more readily understood." In fact she was far less grudging. There was no evidence at all that juries were returning inaccurate verdicts. The mere fact that jury members were unable to regurgitate word-for-word the legal instructions they were given came as no surprise to the judge who was interviewed on Today, either. He saw it as no cause for concern.

It's also difficult to justify Carswell's view that the Ministry of Justice hates juries by reference to their own press release today. This is headed Ground-breaking research finds juries are fair and effective. It trumpets the finding that "all-white juries do not discriminate against defendants from black and minority ethnic (BME) backgrounds". This fact was not even mentioned on the Today programme, but the MoJ clearly intended it to be seen as the most significant conclusion of the report.

Thomas is quoted as saying that her findings "should lay to rest any lingering concerns that racially-balanced juries are needed to ensure fairness." In other words, we shouldn't see juries being tampered with to ensure racial (or perhaps religious, gender or sex-orientation) representativeness. Randomness works. Furthermore, the MoJ doesn't try to present the findings about jurors' recall of legal instructions as evidence of anything fundamentally wrong with the system. Rather, more written instructions would "help jurors do their job".

Turning to the report itself (pdf) it turns out that "fairness" - especially with regards to ethnic minority defendants - was the main subject of the research. But then the title was "Are juries fair." The questions it posed were: Do all-white juries discriminate against black defendants? Do juries racially stereotype defendants? Do juries at some courts have consistently lower conviction rates than others? The answer to all these questions was No. Indeed, "the one stage in the criminal justice system where BME groups do not face persistent disproportionality is when a jury reaches a verdict." The ignorant masses corralled into jury service are less racist than the liberal elites who control the police and the CPS, it turns out. How embarrassing.

In fact, in racially-diverse Nottingham, white jurors were "significantly more likely to convict the White defendant when he was accused of assaulting a BME victim compared to a White victim." In other words, although in these dummy trials no evidence of a racial motive was introduced by the prosecution, the possibility suggested itself to the jury, leading to more convictions. These all-white juries aren't so much racist as anti-racist, over-alert to the possibility of racial sensitivity.

Another interesting finding (again unreported by the BBC) is that "Contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55%)." Previous research had taken a small (and, it turns out, unrepresentative) sample of cases and extrapolated the results to produce a misleadingly low figure - which was then used to justify new laws aimed at producing higher conviction rates. This new research - based on the totality of rape cases over the period 2006-8 - suggests that such measures could lead to significant miscarriages of justice. If there is bias against rape complainants, moreover, it is male alleged victims who are less likely to be believed. "This challenges the view that juries’ failure to convict in rape cases is due to juror bias against female complainants."

The report also disposes of those old briefs' tales of courts - notoriously Snaresbrook - where juries rarely convict. In fact "there were no courts with a higher jury acquittal than conviction rate." There were some variations, that were probably due to extraneous factors (the effectiveness of the local police's evidence-gathering, for example). But where defendants were charged with multiple offences the likelihood of at least one sticking increased dramatically. This is an alarming finding, suggesting that jurors' might well be influenced psychologically in fairly weak cases by the mere fact of there being several charges laid. "Let's compromise and find him guilty of the lesser offence." There's much scope here for prosecutorial mischief.

As for the business of jurors' not fully comprehending instructions from judges, the most striking factor seems to be age. Younger jury members have less trouble understanding the legal issues, it seems. So much for the supposed short attention span of the young... Conversely, of those jurors who admitted using the Internet to look up information - which is very naughty - about the case they were deciding, the vast majority were over 30. Does this mean that they are more net-savvy, or merely less obedient?

So much for the facts. The report's recommendations do however demonstrate some of the anti-jury feeling detected by Douglas Carswell. There's a background hum of fear that jurors might be insufficiently well informed to "do their job" properly, and an unspoken assumption that "doing their job" means bringing in the "correct" verdict. Giving "clearer advice" to jurors is likely to mean guiding their deliberations more closely. It is true, of course, that the role of a judge is to give authoritative advice to the jury on what the law says about a particular crime. But distributing written guidance, as suggested here, runs the risk of over-emphasising the legal formalities at the expense of the proper role of the jury, which is to decide whether or not the person before them deserves to be convicted.

A jury is perfectly entitled to bring back whatever verdict they desire - a fact that judges are apt to overlook. Nor is it necessarily a disaster for a jury to fail to reach a verdict. At times, where the evidence doesn't justify conviction beyond reasonable doubt but an acquittal would rob the prosecution of the opportunity of bringing back a stronger case, it is the most acceptable outcome. There is, perhaps, too much pressure placed on jurors to reach a clear verdict. The report was pleased to find that a mere 0.6% of trials result in hung juries. I find that figure alarmingly low. It probably indicates miscarriages of justice on either side.

There are some cases where the law and the facts point clearly to a conviction, whereas justice and humanity, or even commonsense, might lead to an acquittal. Mercy-killing is an obvious example (to me, at any rate): legally it is murder, but a mandatory life sentence in such circumstances is probably inappropriate. A jury that is "doing its job" as directed by the judge will "put any such considerations out of their minds" - as the summing up is invariably worded - and thus convict. Law 1, Justice Nil. Similarly, where a law is plainly asinine, or the CPS has failed to exercise proper discretion by bringing an inappropriate case to court (Paul Clarke, perhaps), it is not good enough for the jury to merely "do its job" and accept the judge's instructions.

Such obedience - understandable given the intimidating atmosphere of a courtroom - is inimical to the spirit of trial by jury. It risks turning the system into a rubber stamp. The freedom to say "Up Yours" to the judge is the most precious of all a jury's privileges. It is what the jury is there to provide.

I increasingly wonder, though, what BBC news coverage is there to provide.